The Legitimacy of International Authorities: A Reason-Based and Institutional Approach

Today, it goes without saying that international institutions (e.g., the World Trade Organization) exert significant authority over states by shaping their practical reasoning, determining their scope of authority and influencing their domestic structure. Concerns about the legitimacy of international authorities have gained significant attention with the deepening of globalization and integration of the international legal space, as it is clearly manifested by the recent calls for more constitutional, democratic, accountable, and transparent international organizations. Yet those concepts are developed in response to different problems many of which are endemic to state and its comprehensive legal order. As such it seems clear to me that we need a theory of legitimacy not constitutionalism or democracy to appraise whether international authorities are worthy of our respect and obedience. I contend that the service conception of authority (the SC) which suggests that authority is legitimate only if it acts in the service of its subjects and promotes their autonomy is the best theory of legitimacy at our disposal. For it avoids assigning an intrinsic value to democracy, participation, consent, or constitutionalism and assumes that all authorities are instrumental in serving the interest of their subjects. When international authorities are treated as instruments to solve certain international and domestic problems, it turns out to be clear that they can be legitimate when they discharge the tasks entrusted to them. For instance, international human rights authorities are created to solve domestic protection of human rights after states fail to do so, and international and regional trade authorities are created to solve coordination problems between states and help them benefit collectively from global or regional free trade. This thesis adopts a reason-based and institutional approach to the question of legitimate authority. The reason-based approach suggests, among other things, that we need to focus on reasons that drive states to create an international authority to determine its tasks and purposes and specify its standard of legitimacy. That allows us to make a distinction between international authorities primarily designed to solve international coordination problems and those whose concern is to perfect domestic defects and turn domestic authorities into something different. The institutional approach suggests that because law exercises its authority through its institutions and officials, we need to concentrate on the legitimacy of a set of institution that constitute a legal regime/system, rather than on presenting a normative justification for regulations and judicial rulings.