The Legitimacy of International Law: A Constitutionalist Framework of Analysis

Does international law suffer from a legitimacy crisis? International law today is no longer adequately described or assessed as the law of a narrowly circumscribed domain of foreign affairs. Its obligations are no longer firmly grounded in the specific consent of states and its interpretation and enforcement is no longer primarily left to states. Contemporary international law has expanded its scope, loosened its link to state consent and strengthened compulsory adjudication and enforcement mechanisms. This partial emancipation from state control means that domestic accountability mechanisms are becoming ineffective as a means to legitimate international law. Correspondingly, the legitimacy of international law is increasingly challenged in domestic settings in the name of democracy and constitutional selfgovernment. This article addresses this challenge. It develops a constitutionalist model for assessing the legitimacy of international law that takes seriously the commitments underlying constitutional democracy. At the heart of this model are four distinct concerns, each captured by a distinct principle. These principles are the formal principle of international legality, the jurisdictional principle of subsidiarity, the procedural principle of adequate participation and accountability as well as the substantive principle of achieving outcomes that are not violative of fundamental rights and are reasonable. Such a framework provides a middle ground between national and international constitutionalists. Whereas the former sometimes suggest that any law not sufficiently connected to domestic legal actors is suspect legitimacy-wise, the latter tend to underplay what is lost democracy-wise as decision-making is ratcheted up from the national to the international level.