Kosovo to Kadi: Legality and Legitimacy in the Contemporary International Order

Whence does international law derive its normative force as law in a world that remains, in many respects, one where legitimate politics is practiced primarily at the national level? As with domestically focused legal theories, one standard answer is positivistic: the law’s authority is based on its origin in agreed procedures of consent. This is certainly plausible with respect to treaty obligations and commitments that derive from the United Nations Charter, but it leaves customary international law vulnerable to legitimacy critiques—of which there is no shortage among international law skeptics. Even with respect to conventional international norms, such as treaty provisions, there is often a sense that such consent is democratically thinner than the public consent to domestic law, particularly fundamental domestic law, constitutional norms, and derivative principles of legitimate governance. State consent in international law, in this view, is often a very imperfect proxy for democratic consent to international legal norms. While it is obvious to international lawyers why (as a matter of positive law doctrine) state consent should make international norms prevail over domestic norms to which there is arguably deeper democratic consent, persistent critics of international law have questioned whether this should be so as a matter of legitimacy.

An alternative but also complementary (to a large extent) way of understanding the normative force of international legal rules is through the substantive values and interests that these norms protect or express. This is perhaps clearest in the case of world peace and human rights. The idea of human rights, for instance, has never been absent from modern international law (it is reflected in the significance of natural law concepts in Hugo Grotius and the derivation of cosmopolitan right from practical reason in Kant’s legal theory). But the substantive approach is a double-edged sword. On the one hand, it gives international lawyers resources to deal with attacks on customary international law and soft law, but on the other it raises the possibility that positive international law norms could be ignored where the positive law is at odds with the substantive values that justify the compliance pull of international law more generally. On balance, it is fair to say that there has been a rise in substantive justification, with the case for international law embedded in progressive constitutionalist narratives or, more modestly, in a concept of “humanity law” that I have articulated in recent work. However, many international lawyers are uncomfortable with the consequences to this approach. The NATO intervention in Kosovo in 1999 and the European Court of Justice ruling in the Kadi case are ideally suited to exploring these increasingly evident complexities concerning legality and legitimacy in international law.

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