We associate legitimacy with free elections.
National legal orders are perceived as legitimate if they are the result of a democratic constituent process and if parliaments (and governments) are periodically renewed through free elections.
In international organizations, it isn’t so simple.
International law knows just one way to recognize as legitimate an IO: the respect of the rule of law.
It is that simple:
1. An organization is legitimate if it has been established by a valid and ratified international treaty and respects international law.
2. It works legitimately if it respects its establishing treaty and the rules and procedures adopted according to it.
This is not surprising, as most of the International organizations were created after WWII when the world was much less interconnected and the state was considered the only legal framework for democracy.
Luckily, something is (very slowly) changing.
I. What if rules and procedures just cover a mere balance of powers, ignoring the rights of individuals or even of the weaker states?
II. How can legitimacy work in a society of states, which is not a society of equals? How a governance system may fairly represent all them?
III: Is it possible to imagine a legitimacy stemming not from states but from individuals and, if so, how?
Of course, we could imagine more and more problems to solve, but these are enough to start with… so, let’s try to offer some contribution to the solution.
Beside this legitimacy descending from the respect of the rule of law there is (or should be!) another, more substantial point: an organization is perceived as legitimate if it pursues the objectives assigned to it and reflects the common values shared by its members. And perception is important when the effectiveness of the decisions adopted rests on national systems of enforcement.
An organization is considered legitimate if its decisional bodies are perceived as representative of its members. As states are all but equals, it is accepted in most international organizations the principle that Member States are represented differently as they reflect different realities (in size, wealth, power)
The decision-making bodies nonetheless enjoy a greater or lesser degree of representation depending on the way they reflect directly or indirectly the membership. When their representation is mediated by weighted voting, it is quite possible that some states do not feel adequately reflected in the number of votes they express.
Are the current parameters the correct ones to reflect their differences? Could we imagine different criteria to make some countries more prominent than others (and not just the winners or WWII or those having bigger GDP?). No matter there are better ways to reflect their contributions to the world, as the HDI index or even more creative, as the Good Country one.
Of course, it would be all different if representativeness was referred to individuals, instead of states.
In this case, it would be necessary to pay specific attention to the main form of legitimacy: free elections and – as a consequence – an elected parliament. This is what already happens in the EU and this is what many scholars and activist think should happen in the United Nations. Today, 24 parliamentary assemblies are institutionally part of international organization, the oldest one being the Parliamentary Assembly of the Council of Europe, established in 1946
The equal representation of the states and the equal representation of their citizens, therefore, are potentially in conflict: proportional representation applied to whole humanity would make a couple of countries rule the world (if they just voted all the same, something whitch I doubt, but still…). So, some kind of degressive proportionality has to be imagined, weighting more the citizens of small countries and less those of the bigger ones. You may think all this is nothing but a speculative exercise, but I assure you that this may be something very realistic if only it is given a chance (and for sure it is worth the effort of distinguished colleagues).
Without going so far, some international organizations are equipped with parliaments which are not directly elected, but represent nonetheless their citizens through national parliaments’ members. It is a first step. Even in the EU the story started so: the Assembly of the European Economic Community asked from the very beginning – and obtained step by step – to become a real parliament.
Interesting examples of such parliamentary bodies are the Parliamentary Assembly of the Council of Europe, the Pan-African Parliament of the African Union, the OSCE Parliamentary Assembly, while the Parlamento del Mercosur is rapidly evolving into a directly elected chamber. Unfortunately, these important institutional actors mostly play a consultative role.
But parliaments are not the only possible tools for democratic legitimacy.
Alternative solutions do exist, grounded on creativity and political will.
Have a look at what happens in the Global Fund to Fight AIDS, Tubercolosis and Malaria, in the Kimberley Process, in the Internet Governance Forum, in the Global environmental facility. All of them involve in original ways states, individuals and other stakeholders. And they are all different!
There is much room for legal creativity in the globalized world and it is time to take advantage of it.