Legitimacy in IR scholarship

The concept of legitimacy has become increasingly central to the study of world politics, both as a normative concept that informs theories about the desirability of a particular institution or political order in an ideal sense, and as an empirical concept that seeks to capture the beliefs that individuals and groups hold about the rectitude of political authority.Footnote ⁵ My concern in this article is primarily with this second meaning of the concept, one that owes more to the legacy of Weber’s sociological thought than it does to the legacy of Rawls and normative democratic theory. Legitimacy as an empirical concept seeks to recover the beliefs that people hold about political authority, specifically those shared beliefs that inform collective judgments about whether a given arrangement, process, or expression of political authority is appropriate or desirable.Footnote ⁶ The analytic focus is not on individual beliefs but shared beliefs as expressed through public discourse and the ways these discourses structure the claims that actors make to justify their choices or actions to a broader audience.Footnote ⁷ Because legitimacy is an inherently collective phenomenon, one bound up not with individual but with shared beliefs about political authority, these public claims are likely to tell us more about the political dynamics of legitimacy than are the internal, psychological beliefs of actors.Footnote ⁸

There are two broad approaches to the empirical analysis of legitimacy in world politics. One approach, represented most clearly in the work of English School scholars, focuses on the basic principles of legitimacy that underlie and constitute international society.Footnote ⁹ Ian Clark, for example, argues that international society is constituted by principles of legitimacy that generate a sense of binding obligation around core norms of membership and conduct.Footnote ¹⁰ Christian Reus-Smit has similarly pointed to foundational beliefs about the moral purpose of the state that define the constitutional structure of international societies and serve to legitimate more immediate institutional forms, such as multilateralism and international law.Footnote ¹¹ In these analyses, the beliefs that are the focus of analysis are those that constitute how actors view international society as such rather than beliefs about the legitimacy of a particular international organisation or regime. These two sets of beliefs are conceptualised as distinct ‘layers’ of legitimacy, with the deeper layers generating and constituting the beliefs that shape the more immediate layers expressed in specific institutions.Footnote ¹²

A second approach is focused more directly on the legitimacy of specific institutions, regimes, and international organisations. Rather than seeking to uncover the generative principles of international society, this approach analyses the beliefs that shape how individuals and groups judge the legitimacy of a specific international organisation, such as the European Union or the United Nations.Footnote ¹³ These beliefs matter because international institutions are critically dependent upon their status as legitimate instruments of governance in order to shape world politics given their relatively weak enforcement powers.Footnote ¹⁴ In what follows, I focus primarily on this more immediate form of institutional legitimacy, and while the relationship between the underlying, generative principles of international society and the more particular beliefs that shape the legitimacy of international regimes and organisations is an important one, I largely bracket this question.

In studying the question of institutional legitimacy, scholars typically disaggregate the concept of legitimacy into its constitutive dimensions. The most significant move in this effort is undertaken by Fritz Wilhelm Scharpf who, drawing on Easton’s application of systems theory to politics, differentiates between input and output legitimacy.Footnote ¹⁵ Input legitimacy rests upon the presumption that citizens of a democracy should be involved in those decisions that govern their lives and concerns the processes through which citizens are able to participate in the formal decision-making processes of an institution through practices such as electoral representation. This dimension of legitimacy has been the primary concern of those who decry the democratic deficit of international institutions.Footnote ¹⁶ International institutions are often elite-led and provide few avenues through which citizens may participate, either directly or indirectly, in their decision-making processes, and this deficit, it is argued, threatens their perceived democratic legitimacy among the broader public. These criticisms have been levelled most often at the institutions of the European Union whose extensive supranational authority and broad issue-area competence make the lack of democratic participation particularly acute,Footnote ¹⁷ but it is a critique applicable to nearly all other global governance institutions as well. It has led to calls to strengthen the authority of the European Parliament – often seen as the most democratically representative of the EU institutions – and to provide more direct access for citizens to the decision-making processes of other international institutions.

Output legitimacy typically refers to beliefs about the effectiveness of institutions in solving common problems. Institutions enjoy output legitimacy, it is argued, if they are able to produce governance outcomes that satisfy the needs or desires of citizens. Rather than the democratic quality of institutional decision-making processes, what matters for output legitimacy is institutional efficiency and effectiveness. Indeed, output legitimacy is often assumed to have little to do with the normative concerns of democratic self-determination that characterise the analysis of input legitimacy and is instead often derived from notions of expertise, efficiency, and effectiveness.Footnote ¹⁸

The dimensions of input and output legitimacy have served to the frame the debate about institutional legitimacy for many years. As Jen Steffek notes, ‘[f]ew conceptual contributions have left more of an imprint on the academic debate about legitimacy than the distinction between “input” and “output” legitimacy that was coined by Fritz Scharpf.’Footnote ¹⁹ More recently, Schmidt has offered a third dimension of legitimacy, what she terms throughput legitimacy. This dimension concerns not the participatory norms that shape who has formal, decision-making authority or the practical effectiveness of governance institutions but the quality of the process through which decisions are enacted and is closely tied to ideas about the transparency of a policy process, norms of accountability, and opportunities for public participation in the process. As Schmidt notes with respect to the legitimacy of the EU, ‘[t]hroughput … encompasses the myriad ways in which the policy-making processes work both institutionally and constructively to ensure the efficacy of EU governance, the accountability of those engaged in making the decisions, the transparency of the information and the inclusiveness and openness to “civil society”. As such, it constitutes a third and distinct criterion in the normative theoretical analysis of democratic legitimacy, alongside output and input.’Footnote ²⁰

Input, output, and throughput legitimacy are by no means the only concepts that scholars have developed to examine the social legitimacy of international institutions,Footnote ²¹ yet they represent the core concepts around which the study of institutional legitimacy is organised. These dimensions illustrate the multidimensionality of legitimacy in political life, and in this way, they fulfill a similar function to the various concepts of power, known as the ‘faces of power’, that political and social theory have developed over the past thirty years.Footnote ²² These concepts enable scholars to more precisely identify the diverse beliefs that people use to evaluate the relative desirability and appropriateness of political institutions and their practices and help to uncover the often-vexed relationship that exists among these different dimensions. As useful as this three-part conceptual framework is for the analysis of global governance institutions, it is marked by a lacunae rooted in the intellectual genealogy of the study of legitimacy in political science. Most scholars interested in the legitimacy of global governance take as given, either explicitly or implicitly, the premises of democratic theory. These premises are evident, not only in the questions that scholars ask of legitimacy, which often focus on whether institutions are democratic and how they can be made more so,Footnote ²³ but also in the underlying assumptions that scholars embrace as the starting point for examining institutional legitimacy. The concepts of input, throughput, and output legitimacy all take as given the existence of a particular constituency and political community whose beliefs are or should be determinative of an institution’s legitimacy. The concept of input legitimacy in the democratic deficit literature presumes, for example, that we know what constituency should be granted input into the decision-making process – the citizens governed by those institutions. Similarly, output legitimacy assumes that we know whose interests are at stake in evaluating the relative effectiveness or efficiency of global governance institutions.

In taking as the starting point for analysis a particular assumption about who the community, demos, or people are whose identity, values, and interests are at stake in governing, the literature on legitimacy in global governance reproduces a similar move that underlies much of democratic theory. For all the concern with ensuring legitimate forms of rule in democratic thought, there has been surprisingly little interest until recently in the question of who does and should constitute ‘the people’ of a democratic state. Indeed, as Robert Dahl notes ‘[h]ow to decide who legitimately make up “the people” is a problem almost totally neglected by all the great philosophers who write about democracy.’Footnote ²⁴ The question of the constitution of ‘the people’, that is, the very definition of what individuals make up the community whose interests are at stake in governance, is often treated as an historical question that prefigures normative inquiry and is simply assumed by those exploring questions of legitimacy.Footnote ²⁵ In part, this is due to the difficulties of thinking in democratic terms how a people could legitimate its own founding with the implication that, as Sofia Naastrom argues, the question of how ‘the people’ are constituted is not one that can be meaningfully subjected to normative analysis.Footnote ²⁶ Recent work in democratic theory has begun to raise these questions, in no small part because globalisation has made them more salient than they have been heretofore,Footnote ²⁷ yet the presumption that the constitution of the people is not a question that should occupy those concerned with the legitimacy of governance institutions continues to underlie the dominant approaches to the study of legitimacy in IR scholarship.

I want to suggest that the question of who legitimately constitutes ‘the people’ as a collective subject is important not only for democratic theory but also, and perhaps more centrally, for the study of global governance institutions. Unlike questions of institutional legitimacy within the state, international institutions must contend with multiple, often competing ideas about who the constituency of an institution is or should be. Indeed, many of the public debates over the legitimacy of international institutions, I argue, are only indirectly about input, throughput, and output legitimacy and are more directly concerned with questions about the constituent power of international institutions. Attending more closely to the politics of constituent power in the founding and exercise of various forms of international authority both reveals an underappreciated dimension of legitimacy and helps shed additional light on the politics of legitimacy and global governance.

Constitutional legitimacy and constituent power

In this section, I develop the concept of constitutional legitimacy as a distinct dimension of political legitimacy, identifying its core attributes and contrasting it with the three dimensions mentioned above. Constitutional legitimacy concerns, first and foremost, the question of who the constituent power of an institutional order should be. The constituent power is the subject, be it a collection of sovereign states, a transnational demos, or some other collective subject, whose interests and welfare are held to be at stake in the establishment and operation of a political institution.Footnote ²⁸ It is, in other words, the political subject in whose name a specific act of institutional foundation is enacted and in whom ultimate authority rests. In both democratic thought and the practice of popular sovereignty, the constituent power is typically equated with the figure of ‘the people’ or ‘the nation’ that serves as the ultimate source of authority for the state. The state is meant to express and enact the collective will of the people, and the various forms of power and force wielded by government institutions ultimately derive their legitimacy from the claim to represent the constituent subject of the people.Footnote ²⁹

The concept of constituent power has begun to draw the attention of scholars in International Relations and international law.Footnote ³⁰ These scholars raise questions about the legitimacy of international authority, the relationship between ideas of popular sovereignty and supranational entities such as the European Union, and how we should theorise constituent power beyond the state. My approach builds on these studies, but it departs from them in two key ways. First, rather than focusing on the normative questions related to the legitimacy of constituent power, such as who has the right to found new forms of international authority or what should the relationship be between national constitutional traditions and international law, I focus on the empirical analysis of the politics of legitimacy surrounding constituent power in world politics. How, for example, do the debates over the constituent power of an international institution shape the authorities and powers invested in that institution? What consequences do different conceptions of constituent power have, in practice, for the authority of international institutions, regardless of whether those conceptions satisfy the normative criteria of democratic legitimacy? I am concerned, in short, with the beliefs that people hold about the constituent power of an institutional order and how those beliefs shape perceptions about the legitimacy of different forms of international authority.

The second departure I make from existing approaches to constituent power is to disentangle the assumed necessary relationship between constituent power and popular sovereignty. Just as approaches to input, throughput, and output legitimacy begin from democratic premises in taking for granted a preconstituted ‘people’ or demos whose interests and values are at stake in governance, much of the literature on constituent power in international politics assumes that the concept is necessarily tied to the doctrine of popular sovereignty. It is often assumed, in other words, that when we talk about the constituent power of an institutional order, we are necessarily talking about ‘the people’ or demos upon whom the legitimacy of that order rests. Given that the idea of the constituent power emerged in tandem with ideas of democratic and popular sovereignty, such an association makes sense, but I argue that we can meaningfully distinguish between constituent power as a generic analytic concept and the specific doctrine of constituent power associated with popular sovereignty. The constituent power of international institutions need not, therefore, be limited to the figure of ‘the people’ and might be grounded instead in the figure of a community of sovereign states, rights-bearing individuals, or a transnational association of citizens organised around a particular interest.

In differentiating between constituent power and its particular manifestation in doctrines of popular sovereignty, it is important to note that constituent power remains a fundamentally modern political concept.Footnote ³¹ The idea that the fundamental normativity of an institutional order is located in a collective subject presupposes that this institutional order is a product of a collective will – a self-made or self-determined constitutional order – rather than given by God, natural law, or some other transcendental source. It is the emergence of modern ideas of intentionally constituted, ‘self-determined’ political orders grounded in notions of immanent sovereignty, in other words, that foregrounds the concept and politics of constituent power.Footnote ³² Differentiating constituent power and popular sovereignty, therefore, should not be read as an attempt to divorce constituent power from the contingent historical context to which it owes its political relevance and force, but it does suggest that the ‘self’ that grounds the ultimate legitimacy of a political order is not necessarily coterminous with the figure of the ‘the people’ or the nation. Indeed, as I suggest below, the various institutional orders that constitute the universe of global governance must often contend with multiple constituent powers, not all of which rest upon an idea of ‘the people’ as the legitimate, generative source for international political authority.

As noted above, the constituent power of an institutional order is the collective subject upon whom the ultimate normativity of that order rests; as such, it constitutes the locus of sovereignty or supreme political authority for the specific institutional actors, which are sometimes termed the constituted powers, that wield authority within that order such as the Office of the President in a constitutional democracy or the Secretariat of an international organisation.Footnote ³³ These constituted powers carry out the daily functions that sustain an established political order and are often granted significant discretion and authority, but their authority is limited by the principles embedded in the underlying constitutional order. A government, for example, ultimately derives its authority from an anterior source of legitimacy such as a constitution, and its acts are rendered invalid or unauthoritative if it exceeds the limits on its authority provided for in the constitution. It is for this reason that the institutions of government are constituted powers – they are authorised or ‘delegated’ the right to use power by a prior act of constitution.

The constituent power, in contrast, is the subject from whom the constitutional order originates in the first place. It concerns the constituency in whose name an institutional order is founded, but it goes deeper than simply identifying the interests served by an institution’s policies. The constituent power points, as Hans Lindahl notes, to the collective selfhood of a political order, the ideas that both define the self-identity of a particular political association and ground the collective purpose and normativity of that order.Footnote ³⁴ It constitutes, in other words, the public identity of an institution – the collective selfhood that actors assign to themselves when they work in concert as a corporate actor.Footnote ³⁵ Public identity is similar to the concept of collective identity that has been the focus of Constructivist scholarship in that it provides a ‘universal’ or general identity that unites particular agents in collective action,Footnote ³⁶ but it differs in two key respects. While collective identities are often constituted by shared cultural practices and implicit knowledge, public identities are explicit and acknowledged. Actors openly and knowingly invoke public identities before others, and this public presentation of collective selfhood is the practice that constitutes and sustains a public identity over time.Footnote ³⁷ Second, while collective identities are typically thought to play a constitutive role in the self-identity of actors, generating a deep level of attachment that leads those actors to behave on the basis of a ‘logic of appropriateness’,Footnote ³⁸ public identities tend to be shallower. Actors need not develop deep attachments to the public identity that underlies an association; indeed, they may use this identity instrumentally, as a means to rhetorically coerce others.Footnote ³⁹ The concept of constituent power thus seeks to capture the underlying generative principles that constitute the public identity of an institution, and while these principles are often bound up with ideas about the rights of ‘the people’ as a collective subject, this relationship, I want to suggest, is contingent rather than necessary.

The ideas that members of a political order hold about the constituent power of that order constitute a dimension of political legitimacy distinct from input, throughput, or output legitimacy – a dimension that I term constitutional legitimacy. Because I am interested in the empirical analysis of legitimacy, this dimension relates to the claims that actors make to the public identity underlying institutional authority rather than an actually existing global public.Footnote ⁴⁰ Constitutional legitimacy concerns the constitutive justification for a particular institutional order and involves two sets of questions: the first order question of who the constituent power of that institutional order should be and the second order question of what the relationship should be between the constituent and constituted powers of that institutional order. The first order question of constitutional legitimacy asks whether the authority of the institution is grounded in the appropriate constituent subject and is evident in debates over the public identity of an international institution. Should, for example, the United Nations primarily serve the interests of the individual member states, operating as a forum for intergovernmental bargaining, or should it serve the interests of ‘the international community’, pressuring the member states to act on the basis of their shared collective interests rather than their national interests. What actors constitute this international community – the peoples of the member states or a larger global community of NGOs, other IOs, and transnational social movements? Is the constituent power of the European Union, to offer another example, the sovereign member states, the peoples of those states who together constitute a transnational European public, or perhaps the European community that has yet to be created?Footnote ⁴¹

As these examples make clear, the first order question of constitutional legitimacy is often deeply ambiguous in the context of international institutions, a fact that sets the constitutional politics of international institutions apart from those of domestic constitutional orders. While the question of constituent power remains an ongoing concern within sovereign states, it relates primarily to the question of who constitutes ‘the people’, and the presumption that it is the figure of ‘the people’ that should ground the normativity of the domestic constitutional order is rarely questioned. In world politics, international institutions not only wrestle with the question of who makes up the constituent power (such as, for example, the question of which political communities should be recognised as sovereign states), they also confront uncertainty about what subject is the appropriate constituent power for the constitutional orders that they instantiate. Should international authority derive its constitutional legitimacy from an association of sovereign states, from the peoples who are represented by these states, or from a larger supranational subject such as the international community? The last seventy years have witnessed a proliferation of claims to postnational constituent powers in world politics, some of which have become deeply embedded in the architecture of major international institutions such as the UN.Footnote ⁴² Human rights, to take one prominent example, rests upon the postnational constituent power of ‘humanity’ or the rights-bearing individual rather than the state or ‘the people’, and this generates deep-seated and often irreconcilable tensions with the institution of state sovereignty.Footnote ⁴³ These and other developmentsFootnote ⁴⁴ challenge the state-centric constitutional order of traditional international law and render the constitutional legitimacy of contemporary international institutions highly contentious and often deeply ambiguous.

Despite this ambiguity, first order questions about the constituent power of an international institution help to shape the politics of legitimacy in important ways. Beliefs about the public identity of an institution shape perceptions of the public interest that an institution is meant to serve. These shared beliefs constitute what an audience accepts as a reasonable justification for action, which both constrains and enables the actions that an institution can legitimate. The exercise of power by international institutions, be it the promulgation of regulatory policies, the adjudication of an international dispute, or the adoption of new legislative initiatives by the plenary assembly, is partly legitimated by reference to the public interest their actions are meant to serve,Footnote ⁴⁵ and this public interest presupposes a public identity grounded in a shared understanding of the appropriate constituent power of that institution. Institutions that fail to justify their actions with reference to the public interest or appeal to a public interest that is at odds with commonly held beliefs about the appropriate constituent power of the institution will find their constitutional legitimacy under strain. One common criticism levelled at the United Nations Security Council, for example, is that it is an ‘elite pact’ whose priorities reflect the interests of the Permanent Five (P5) members rather than the broader international community whose interests it is intended to serve, and this has weakened the perceived legitimacy of the Council over time.Footnote ⁴⁶

The second order question of constitutional legitimacy concerns the relationship that should obtain between the constituent and constituted powers of an institutional order. Beliefs about what the constituent power of an institutional order should be provide the normative and rhetorical resources needed to legitimate different constitutional structures within an institutional order. Constitutional structures refer to fundamental authority relations that define an institutional order by specifying the distribution of rights, responsibilities, and jurisdictions among the various constituted powers that wield public authority and their relationship to the underlying order as a whole.Footnote ⁴⁷ Within domestic political orders, constitutional structures determine the authority that the branches of government, such as the executive, the judiciary or the legislature, enjoy in relation to each other as well as the relationship between the authority of the state and its citizens.Footnote ⁴⁸ The constitutional structures of international political orders are fundamentally about the authority relations between the organs of an institution and its member states, such as whether an institution will be intergovernmental or supranational in character.Footnote ⁴⁹ The legitimacy of these various arrangements, I am arguing, are fundamentally shaped by the prevailing ideas about the constituent power of the international institutional order. When the constituent power of an institution is grounded in a subject distinct from sovereign states such as the international community or the individual, it becomes possible to legitimate a supranational constitutional structure in which international authority may be exercised without the requirement of unanimous member state consent. If, for example, the European Union serves a constituency that exists over and above the sovereign member states, such as a transnational European public,Footnote ⁵⁰ investing EU institutions with the authority to independently decide policy choices would be not only permissible, but also necessary in order to effectively represent the interests of Europe.Footnote ⁵¹ As with first order questions, these second order questions about the proper distribution of authority within an institutional order are shaped by the shared beliefs about the appropriate constituent power of that order as these beliefs provide the discursive and rhetorical resources needed to legitimate a particular constitutional structure. Governments or other actors may prefer a particular form of international authority, be it consensual intergovernmentalism or an autonomous, independent international bureaucracy for particular, consequentialist reasons that have little to with a normative commitment to a particular understanding of constituent power, but these actors will frame their interests in terms of a proposed public identity in order to legitimate those preferences before a global audience.

Constitutional legitimacy thus concerns how shared beliefs about what the constituent power of the institution should be to shape the public identity of the institution and the perceived legitimacy of its constitutional structure. It is distinct from input, throughout, and output legitimacy in two key respects. First, as noted above, it concerns the very definition of the constituent power that the other dimensions of legitimacy take as their starting point for analysis. Second, constitutional legitimacy deals with a normative dimension of institutional design, what I have termed the constitutional structure, which is not reducible to the procedural design questions highlighted by the other faces of legitimacy. Whether or not the people have a direct, indirect, or no input into the decision-making process of an institution, for example, is a separate consideration from what authority that institution should wield over the people and how that authority should be distributed among the various organs of an institution. To put it differently, the concepts of input, throughput, and output legitimacy are directed towards the normative implications associated with the exercise of institutional authority – asking who decides, how those decisions are enacted, and whether they are effective – while constitutional legitimacy is directed towards the normative implications associated with the jurisdiction of institutional authority – asking who is subject to the institution’s authority, what the limits of that authority are, and how this authority is distributed among the various institutional organs.

The above discussion has sought to demonstrate that constitutional legitimacy is conceptually and empirically distinct from the dimensions of input, throughput, and output legitimacy. While I have discussed in theoretical terms the implications that this concept has for the study of the legitimacy of international institutions, in the next section I examine in more detail how these ideas shape legitimacy dynamics in three different cases: the 2004–5 debates over the reform of the UNSC, the creation of the ICC, and the debate over the Responsibility to Protect (R2P) doctrine. In each case, I focus on how different representations of constituent power shaped perceptions of constitutional legitimacy and the authority of these institutions.

Debating UNSC reform

Reform of the UNSC has been on the UN agenda since 1993 when the interminably named ‘Open-Ended Working Group on the Question of Equitable Representation and Increase in the Membership of the Security Council and Other Matters Related to the Security Council’ was created to examine the question. Despite widespread agreement on the need for reform by nearly all UN members, the formal presentation of a number of reform proposals, and a series of often heated debates over those proposals in the United Nations General Assembly (UNGA), there has been little progress towards reforming the Council’s membership. This lack of progress notwithstanding, the different reform proposals and the debates surrounding them illustrate how different conceptions of constituent power can influence perceptions of legitimacy. As I show below, one of the major dividing lines in the debate over UNSC reform concerns the question of who the constituent power of the Council should be. Appreciating this dimension of UNSC legitimacy and its implications for the composition of the Council sheds new light on the difficulties that continue to plague the question of membership reform after nearly 23 years of debate.

After an initial period of activity during the mid-1990s, the debate on UNSC reform began again in earnest in the early 2000s, partly in response to a report produced by a High-Level Panel established by Secretary General Annan, which laid out two possible models of reform.Footnote ⁵² These models served as the basis for formal proposals from UN members, and I focus on two of the more important ones here: the G4 proposal and the United for Consensus (UfC) proposal. The G4 proposal, sponsored by Germany, Japan, India, and Brazil (among others), called for the addition of six permanent and four non-permanent members. The four sponsors hoped to win election in the UNGA to four of the permanent seats, and the remaining two seats would be occupied by African countries, also to be chosen by the UNGA.Footnote ⁵³ The competing UfC proposal was put forward by Italy, Canada, Columbia, Pakistan, and a number of other countries and called for the addition of ten non-permanent seats regionally distributed with the possibility of immediate re-election.Footnote ⁵⁴ While other proposals were also offered, such as the Africa Union proposal, it was the debate between the G4 and UfC proposals that generated the most discussion and disagreement within the General Assembly. Both proposals agreed that reform of the Council’s membership was needed and both also suggested changes to the working methods intended to increase transparency and deliberation. The key point of disagreement concerned whether to add new permanent seats or to only increase the number of non-permanent seats. Critics of the G4 proposal argued that new permanent seats would further institutionalise the unequal status in the UNSC between permanent and non-permanent members, exacerbating problems of accountability and making it more difficult for smaller states and regions to have meaningful representation in the Council. Critics of the UfC proposal, in contrast, argued that it would make decision-making in the Council more cumbersome, undermining its effectiveness and weakening its ability to respond to new security threats.

Underlying this debate were two views on what the constituent power whose interests should be the focus of representation in the Council should be. Those governments supporting the UfC proposal consistently argued that the constituent powers of the UNSC were the regions of the world. The proposal to increase non-permanent seats distributed according to region, it was argued, would be the most effective way to ensure that these interests were represented while adding additional permanent seats, as the G4 proposed, would diminish the representative quality of the UNSC. As Canada, a sponsor of the UfC proposal, argued, the addition of new permanent members ‘would betray the values that Member States have developed over time … . It would deprive the world’s regions of a democratic and orderly way to determine for themselves their representation in this institution’s most significant body.’Footnote ⁵⁵ Mexico, in criticising the G4 prospoal, similarly claimed that ‘it is extremely unlikely that the new permanent members would be able to act as regional representatives’.Footnote ⁵⁶ Only non-permanent members could ensure the effective representation of regional interests, as Pakistan argued: ‘[s]tates that are elected to represent regions or groups will remain answerable to those regions or groups. If elected permanently, they will not.’Footnote ⁵⁷ The UfC proposal thus assumes, as Ian Hurd notes, ‘that states share their most important interests with others in their region rather than outside the region’.Footnote ⁵⁸ It represents the purpose of the UNSC as the forum where these regional interests, the primary constituent power of the Council, should be articulated and defended. Any proposal that weakened the accountability of UNSC members to their regions, therefore, would undermine the legitimacy of the Council.

The arguments offered in support of adding new permanent members rested upon a distinct understanding of the constituent power of the UNSC. Rather than emphasising the importance of regions, G4 supporters emphasised the importance of ensuring that the work of the Council could draw upon the resources of powerful states. As Japan, one of the core sponsors of the G4 proposal, argued before the General Assembly: ‘[c]ountries with the will and resources to play a major role in international peace and security must always take part in the Council’s decision-making process.’Footnote ⁵⁹ The arguments for including new permanent members were grounded in a shared belief that the effectiveness and authority of the Council stems from the support it receives from Great Powers. Belgium articulated this belief most clearly: ‘the presence of permanent members makes the Council effective in managing issues affecting international peace and security. Effectiveness is involved here, but also authority. By bringing together around one table the major actors on the international diplomatic stage – those which make the greatest diplomatic, military and financial contribution to the Organization – the Council can speak with a voice that no one can ignore.’Footnote ⁶⁰ Similar arguments were made by many of the governments supporting the G4 proposal, and they involved two claims that both reflect a shared understanding about the constituent power of the Council. First, those supporting the permanent membership of Japan, Germany, India, and Brazil argued that they had earned the right to permanent membership through the consistent support they had shown for the Council’s efforts. As Ukraine noted, ‘those countries that contribute most to the Organization militarily, diplomatically and financially should be involved in the Council’s decision-making process’.Footnote ⁶¹ Second, G4 supporters argued that by enjoying permanent membership, these states would be better able to defend the collective security interests of the international community. Powerful states were better able, as France put it, to work ‘on behalf of the most fragile and vulnerable regions, countries or populations’.Footnote ⁶² Indeed, as one state argued, granting permanent seats on the basis of demonstrated commitment and capability to international security rather focusing on ensuring equitable regional representation ‘protects the interests of all States, large and small, showing no bias to any particular region or group’.Footnote ⁶³ These arguments in support of the G4 proposal downplay the importance of regional interests in the Council in favour of the collective interests of the international community and the interests of weak and vulnerable states in particular. They thus present a distinct view of the constituent power of the Council whose interests should guide decisions about membership reform.

The concept of constitutional legitimacy helps illuminate dynamics of this debate that are partly obscured by a focus on input, throughput, or output legitimacy alone. The debate over UNSC membership reform is often presented as illustrative of the tensions between input and output legitimacy in international institutions.Footnote ⁶⁴ Improving input legitimacy by expanding the range of actors involved in the decision-making process of an institution might make it more difficult for that institution to decide upon and enact effective policies, weakening its output legitimacy. While this view does capture some of the dynamics of UNSC reform debates, it misses the deeper disagreements over the constitutional legitimacy of the Council. All governments favour expanding Council membership, a move that would invariably make decision-making more difficult. Disagreement centers primarily on whose interests should be represented in an expanded Council, a debate that rests upon a fundamental disagreement about what the constituent power of Council should be. Should the composition of the Council be concerned, first and foremost, with giving voice to the different regional interests of UN members? Or should it be focused on ensuring that the Council has the will and capacity to act on the collective interests of the international community in defence of its most vulnerable members? Without first answering these fundamental questions of constitutional legitimacy, efforts to expand Council membership could end up weakening the institution’s legitimacy if the states granted access are not widely perceived to be representative of the appropriate constituent power. This debate over the proper relationship between the regional and collective interests of UN members extends as far back as the initial negotiations over the UN Charter in 1945,Footnote ⁶⁵ and indicates that the difficulties associated with UNSC reform are located not only at the level of input, throughout or output legitimacy but at the constitutional level where we find deep-seated disagreement over whose interests the council is or should be designed to serve.

Constituent power and the ICC

Whereas the case of UNSC reform helps to illustrate how debates over input and output legitimacy may be grounded in a more fundamental disagreement over questions of constitutional legitimacy, the case of the founding of the ICC helps to illustrate how shared beliefs about constituent power shape the constitutional structure of international institutions through processes of public legitimation. The origins of the ICC lie in the collective interest to create a more durable institutional architecture for responding to international atrocities, particularly after the genocide in Rwanda and the ethnic cleansing and war crimes in Bosnia during the first half of the 1990s.Footnote ⁶⁶ Most governments publicly acknowledged the desirability of some kind of institution to address these problems, and there was general agreement at an early stage of the negotiations that the new court should deal, at the very least, with the most serious international crimes, particularly genocide, crimes against humanity, and war crimes.Footnote ⁶⁷ The major division that emerged during the negotiations concerned the constitutional structure of the ICC along two dimensions: the independence of the Office of the Prosecutor and the jurisdiction of the ICC over nationals of non-state parties. With respect to the first dimension, some states, in particular the United States, sought to subordinate the authority of the prosecutor to the UN Security Council, ensuring that investigations could only be initiated with UNSC approval.Footnote ⁶⁸ In contrast, a coalition of states and NGOs called the Like-Minded Group (LMG) sought to invest the prosecutor with the autonomy needed to act independently of the great powers, enabling him or her to initiate investigations propio motu.Footnote ⁶⁹ The US and other governments also vigorously opposed the delegation of compulsory territorial jurisdiction over the core crimes to the ICC.Footnote ⁷⁰ As David Scheffer, the lead US representative at the treaty negotiations noted, the provisions in the statute related to the jurisdiction of the ICC (article 12), were ‘the single most problematic part of the Rome Treaty’.Footnote ⁷¹ Rather than compulsory jurisdiction, the US offered a number of provisions that would require the prior consent of the state whose nationals were to be subject to the court’s jurisdiction.Footnote ⁷² The LMG, in contrast, argued that compulsory jurisdiction was necessary in order to preserve the function and core purpose of the institution, with some states, such as Germany, even arguing (unsuccessfully) that the ICC should enjoy universal jurisdiction.Footnote ⁷³

Underlying the dispute over the constitutional structure of the court was a disagreement about the appropriate constituent power of the ICC. Those arguing in favour of an independent court represented the purpose of the ICC as the protection of individuals from state power, locating the constituent power of the proposed institution, not in the common interests of sovereign governments, but in the superordinate interest of the international community and ‘mankind’ as a collective subject. As one legal expert argued, ‘[b]y acknowledging the concept of humanity, international law in fact makes reference to the common interests of all human beings, to the universal common good, and it seems obvious that the Statute of the International Criminal Court … bears witness to the existence of a more solidary international community.’Footnote ⁷⁴ This understanding of the purpose of the ICC can be found throughout the statements made by those members of the LMG who pressed for a more independent court. During the early stages of negotiation – when governments were first asked to consider a draft statute drawn up by the International Law Commission – a number of participants explicitly drew the link between the constituent power of the proposed court and the need for supranational authority. As the report of these discussions notes with respect to the debate about the compulsory jurisdiction of the court:

That the court would represent the international community as a collective subject rather than the interests of the individual governments themselves is also evident in the debate over the powers of the prosecutor. As this same report notes, these delegations argued that allowing propio motu investigations ‘would enhance the independence and autonomy of the prosecutor, who would be in a position to work on behalf of the international community rather than a particular complainant State or the Security Council’.Footnote ⁷⁶ This discourse of supranational constituent power recognised the central role that state governments would continue to play in the realisation of international criminal justice, but it placed them in a fiduciary relationship with respect to their citizens and envisioned an independent ICC as necessary to give expression to the collective interests of the international community.Footnote ⁷⁷

Opposing this representation of the constituent power of the ICC was a more traditional argument that the ICC should be an instrument of and subordinate to state interests. Members of the P5 in particular, argued that an overly independent ICC could undermine the political interests of the great powers and potentially generate instability.Footnote ⁷⁸ Underlying this argument was a representation of the constituent power of the ICC as the association of sovereign states who share an interest in preventing human rights atrocities. The purpose of the ICC was thus to enhance intergovernmental coordination and state power, providing states with an ability to prosecute international criminals when it might otherwise be impossible, such as in a postconflict situation in which state institutions are weak or non-existent, rather than to provide a check on state actions towards its citizens. As one government argued in opposition to compulsory jurisdiction, ‘the question of State consent should be examined from the perspective of a basic goal of the planned court: to allow and to encourage States to exercise jurisdiction over the perpetrators of a particular crime’.Footnote ⁷⁹ This idea was echoed in later negotiations by the US: ‘the court must complement national jurisdictions and encourage national action wherever possible. For that reason, it would be unwise to grant the Prosecutor the right to initiate investigations … [The court] should not exist to sit in judgement on national systems and intervene if it disagreed with them.’Footnote ⁸⁰

The tension between these two discourses – one that constructed the constituent power of the ICC as the postnational subject of the international community and the other that saw the ICC as representing the common interests of states in prosecuting international criminals – is evident throughout the debates over the authority that would be invested in the new court. While some concessions to preserving state sovereignty were incorporated in the final draft of the statute,Footnote ⁸¹ ultimately, the discourse representing the purpose of the ICC in terms of a supranational constituent power prevailed during the Treaty of Rome negotiations, and those states, such as the US, who sought a more intergovernmental framework, were left with the option of accepting a supranational constitutional structure or abstaining from participation in the ICC. The US and other powerful states, such as Russia and China, chose not to join, and this fact has generated a number of important tensions for the ICC in recent years.Footnote ⁸² Appreciating both the origins of these tensions and the politics surrounding the creation of the ICC is difficult to capture without attending to the dimension of constitutional legitimacy and the politics of constituent power that accompanies it.

The constitutional legitimacy of R2P

The emerging doctrine of the Responsibility to Protect (R2P) provides another opportunity to examine the politics of constitutional legitimacy. R2P outlines a set of principles related to the responsibilities that governments have towards their citizens, the role of the international community in assisting governments in carrying out that responsibility, and the conditions under which the international community should intervene in a humanitarian crisis to protect populations threatened with large-scale atrocities.Footnote ⁸³ It represents, in the words of one observer, ‘the most important shift in the definition of sovereignty … since the Treaty of Westphalia’.Footnote ⁸⁴ While this new doctrine has received widespread support from governments and NGOs alike, it has not been without controversy as it opens the door to the possibility of armed intervention into the domestic affairs of another state without that state’s consent. R2P, if it evolves into a binding norm of international law,Footnote ⁸⁵ would represent a significant reform to the legal regime governing the use of force, a regime that has, heretofore, been grounded firmly in the norms of territorial integrity and non-interference.Footnote ⁸⁶ Both prior to the 2005 World Summit, where R2P was officially endorsed by world leaders, and in 2009 when the UNGA opened a discussion on how to implement its principles, a debate emerged on the legitimacy of the proposed principles and their proper implementation. Analysing these debates through the concept of constitutional legitimacy helps to reveal how different views of R2P reflect distinct arguments about what the constituent power of the legal regime governing the use of force should be and the authority that key institutions, such as the UNSC, should enjoy in defending it.

Most governments participating in the summit and the subsequent UNGA debate supported the principles laid out in articles 138 and 139 of the 2005 World Summit document that endorses R2P,Footnote ⁸⁷ but disagreement over how to implement these principles ultimately prevented the UNGA from reaching any significant conclusions or making concrete recommendations. Indeed, the final resolution in 2009 merely commits the UNGA to ‘continue its consideration of the responsibility to protect’,Footnote ⁸⁸ and this lack of consensus continues to characterise discussions of R2P at the UN. These disagreements are ultimately rooted in different views about the legitimacy of the legal regime governing the use of force. At issue was not – or perhaps better, not only – the question of how decisions about the use force should be made, a dimension of input legitimacy, but more fundamentally the subject whose interests should be given priority in the decision by the international community about whether to use force, a dimension of constitutional legitimacy.

Those supporting the principle that the UNSC be permitted to authorise armed interventions when governments are unwilling or unable to protect their own citizens from genocide, ethnic cleansing, and crimes against humanity, argued that this authority was necessary in order to protect individuals and peoples from mass atrocities. These arguments shifted, often explicitly so, the constituent power of the international regime governing the use of force from sovereign states to people and citizens, a shift articulated most clearly by Poland during the 2005 debates. ‘[A] new paradigm of security has emerged’, Poland argued, ‘moving the center of attention from the security of States towards the security of citizens – the individual human beings – a shift from the concept of defending territory to that of protecting people.’ This new understanding of security called for a strengthening of the emerging R2P norm that is ‘exercisable by the Security Council, in cases when sovereign Governments have proved unable or unwilling to act’.Footnote ⁸⁹ As Belgium similarly argued during the 2009 UNGA debates: ‘we must demonstrate our solidarity with civilian populations. If a State is not prepared to assume its responsibilities, the international community must act, using all the means at its disposal, including, as a last resort, coercive measures pursuant to the Charter of the United Nations.’Footnote ⁹⁰

Opposition to R2P focused on the so-called ‘third pillar’ which deals with coercive intervention and rested upon a distinct understanding of the subject whose interests the legal regime governing the use of force is meant to serve. For these opponents, which included a number of non-Western and rising powers, the legitimacy of this regime was tied to its ability to protect weaker states from opportunistic interventionism by powerful states, and R2P, given its imprecise and often ambiguous principles, was seen as potentially emboldening great power interventionism. Egypt during the 2005 debates preceding the World Summit noted that: ‘the theory of the “responsibility to protect”, advocated in the report,Footnote ⁹¹ could become a threat to the principle of the national sovereignty of States and could usher in a new era of intervention in the internal affairs of countries’.Footnote ⁹² Other governments raised similar concerns, though perhaps none as vociferously as Venezuela’s representative who called R2P ‘a pretext for interfering in the internal affairs of States – the weak ones, of course – applying double standards and concealing unmentionable motives’.Footnote ⁹³ These concerns were raised again in 2009 and subsequent UNGA debates, with states repeatedly emphasising the need to respect the sovereignty and territorial integrity of UN member states when implementing R2P.Footnote ⁹⁴ While these governments accepted the basic principle that civilian populations should be protected from mass atrocities, they argued that the ‘protection of citizens should not be used as a pretext to undermine the sovereignty, independence and territorial integrity of States’.Footnote ⁹⁵ In emphasising the dangers of great power interventionism, these governments framed the constituent power of the legal regime governing the use of force as the weaker states vulnerable to predation from the great powers rather than individuals or peoples. Those principles that threatened to make weaker states more vulnerable to this predation, such as permitting armed intervention into another state without its consent, were thus viewed as illegitimate.

Appreciating the disputes over the constitutional legitimacy of R2P helps to explain the difficulties associated with developing R2P into an effective international norm. These difficulties stem, not only from disagreement on the dimensions of input, throughput, and output legitimacy, but also and more fundamentally from a disagreement about what the constituent power of the regime on the use of force should be. As one scholar has argued, the continued opposition of some governments to R2P, including Russia and China who objected to the manner in which R2P was implemented in Libya and vetoed numerous resolutions related to Syria, ‘derive from fundamental tensions regarding international order and justice’.Footnote ⁹⁶ The concepts of constitutional legitimacy and constituent power help bring these tensions into sharper relief and suggest that further progress on implementing R2P is contingent upon the ability of governments to reach a consensus on whose interests the regime governing the use of force is designed to protect.