The Legitimacy of International Rulemaking

When governments reach international agreements, or sign international treaties, we usually applaud. We take it as a good sign that the different countries around the world can get together on rules of behaviour and cooperate in managing global problems. However, rather surprisingly perhaps, there is no generally accepted explanation of what gives such agreements their legitimacy. In one sense this does not matter. Theorists can disagree and the world rolls on regardless. Nevertheless, it would help underpin international rulemaking if there were to be a general understanding. 
 
This post looks at the three main approaches, the first based on the role of states, the second on global values and the third on individual acceptance.

Defining legitimacy
 
A system of rulemaking can claim legitimacy when it rests on voluntary acceptance. Voluntariness is important. This distinguishes a legitimate system from a system of rulemaking that is accepted simply because we fear the consequences of jail or punishment if we do not obey. 
 
The focus is also on the system. In a domestic context we may disagree with a particular law passed by our government, or a particular judgment of a court. However, we can still accept the system for reasons that are separate from particular cases. The same concept applies to international rulemaking.
 
The role of states
 
The most common basis for claiming that an international agreement is legitimate refers to an agreement that is made and ratified by most, or all, of the countries in the world. For example, the 1992 Rio Convention on Climate Change has been signed by 197 countries and the subsequent 2016 Paris Agreement by 189. The fact that so many countries have signed up can be presented as convincing evidence of the legitimacy of the agreements.
 
In this approach, the different states around the world are demonstrating that they can act on behalf of the global whole, and for citizens of the world. They are also acting on behalf of their own citizens. They are conveying the consent of their own peoples.
 
The flaw in this account of what makes an agreement legitimate, and the reason why it is not generally accepted, is that not all states in the world have a valid claim to represent and to speak for their people. According to Freedom House there are 84 states in the world that are free, 59 states that are not free, and 67 in the middle. This means that evidence of the voluntary acceptance of the system of rulemaking is lacking. Some governments are giving their people no choice other than to obey what they say. Thus, it seems necessary to look for an approach to legitimacy that does not centre on the role of states.
 
Global values
 
The most common alternative approach, and one that cuts states out of the picture, is to appeal to global values. Global values are usually expressed as fundamental human rights. They can also be expressed in terms of the principles of global justice applied to the whole planet. According to this view, the Rio Convention and its successor treaties can be seen to be legitimate because environmental rights can be claimed to belong to the family of fundamental human rights. In addition, a sustainable environment can be seen to be part of what we include in concepts of global justice. 
 
Because fundamental rights and concepts of global justice are based on foundations independent of states and pertain directly to people, this approach appeals particularly to non-state actors such as international NGOs. 
 
Although claims about fundamental human rights and global justice rest on their own logic and not on institutions, an appeal to global values can be used to support global institutions and particularly the UN and its agencies. The UN symbolises the global whole. It also symbolises the global citizen. It stands for values that apply to all citizens, in all circumstances, everywhere. They apply even in the absence of a global ‘demos’. Thus, UN agreements can generally be seen to have legitimacy.
 
There are two problems with this account of what makes international rulemaking legitimate. The first concerns the status of claims about fundamental rights. Rights can be seen as providing useful ways for benchmarking values that are relevant in making the rules, in excluding the irrelevant, and in making comparisons between situations. However, the claims often go beyond a benchmarking role. Fundamental rights and the claims for global justice are presented as beyond dispute. The difficulty is that there are very few, if any rights, or concepts of global social justice, that fall into the ‘beyond dispute’ category.
 
The second, related, problem concerns ‘pluralism’. There is a strong body of opinion that looks at the diversity of social values that can be seen in the world, the diversity of social traditions and sources of law, and the diversity of interpretation of values. This body of opinion argues that there is no justification for privileging one source of law, or for imposing one view and one interpretation of important values. According to this approach, what is needed at the global level are the virtues of accommodation, co-existence and the management of diversity. 
 
A pluralist approach to fundamental values is open to a variety of sources of international rulemaking, including those rules of behaviour coming from professional and civic associations. At the same time, it reopens a key role for states. States can claim to give voice to the diversity of social settings, traditions and interpretations we see in the world.
 
Individual acceptance
 
The third approach to the legitimacy of international rulemaking turns to the importance of individual acceptance of any system of rulemaking. Individuals have to make their own judgements on fundamental values, their application and their interpretation. 
 
Individual acceptance can be based simply on the internal properties of laws. For example, in order to be acceptable, the rules must be clear and apply to everyone who is similarly situated. However, individual acceptance is often seen to depend on more than formal properties alone. It also is seen to depend on individual acceptance of the ways the laws and rules have been made. This means that they must have been made in a democratic way.
 
This way of looking at legitimacy sets a severe test for international agreements, including those reached in Rio and Paris. The UN is far from the citizen and many of its member states are not democratic. Moreover, it is not evident that agreements such as the Rio Convention and its successors will be applied equally in the same way by all signatories. UN interventions are inconsistent and irregular.
 
This approach tends to reinstate the importance of the character of the state. In particular, democratic states are best placed to claim that their rulemaking is based on consent and that their laws have the formal properties required.
 
Wrapping it all together?
 
Since there is no general agreement on what makes international rulemaking legitimate and the system is often blamed for being ‘incoherent’ anyway, there have been suggestions that the time has come for some kind of global ‘constitution’. This would make clear who does what, ensure checks and balances, reframe the role of rights, and could connect state constitutions to the global level. The problem is, of course, that there is no agreement on what such a constitution should contain. Nor is there likely to be. For example, there are many different interpretations attributed to such necessary elements as the meaning of ‘the rule of law’. 
 
Does it matter?
 
We are left with a situation where we need a system for making international rules of behaviour that people can accept voluntarily but, we are far from attaining one, or even agreeing on what one would look like. Perhaps it does not matter. We can simply accept that the architecture is incomplete and imperfect but that it is way better to have something like the UN rather than nothing at all. It is hardly surprising if a system of international rulemaking remains ‘work in progress’.
 
The problem with leaving such a fundamental feature unsettled and in dispute is that it paves the way for a retreat from fully international agreements. We see signs of this retreat in the case of the WTO. The idea of any new comprehensive trade agreement seems to have been abandoned in favour of what is called ‘plurilateralism’, where there are narrow agreements among only limited numbers of countries. 
 
The WTO example suggests a need to look further for ‘second best’ alternatives. For example, in the immediate post war period a group of like-minded democratic countries got together under the auspices of OEEC to distribute aid, and to agree on the rules for currency convertibility and trade liberalisation. Perhaps we are back to a time where the initiative for rules of behaviour rests once again with groupings of like-minded democratic countries. If their initiatives are successful, they can be adopted later on a fully international basis.