The UN Security Council, normative legitimacy and the challenge of specificity

ABSTRACT

This paper discusses how the general and abstract concept of legitimacy applies to international institutions, using the United Nations Security Council as an example. We argue that the evaluation of the Security Council’s legitimacy requires considering three significant and interrelated aspects: its purpose, competences, and procedural standards. We consider two possible interpretations of the Security Council’s purpose: on the one hand, maintaining peace and security, and, on the other, ensuring broader respect for human rights. Both of these purposes are minimally morally acceptable for legitimacy. Second, we distinguish between three different competences of the UNSC: 1) the decision-making competence, 2) the quasi-legislative competence, and 3) the referral competence. On this basis, we argue that different procedural standards are required to legitimise these competences, which leads to a more differentiated understanding of the Security Council’s legitimacy. While maintaining that the membership structure of the Council is a severe problem for its legitimacy, we suggest other procedural standards that can help to improve its overall legitimacy, which include broad transparency, deliberation, and the revisability of the very terms of accountability themselves.

KEYWORDS:

• Legitimacy standards
• meta-coordination view
• autonomy
• competences
• institutional purpose
• feasibility

Acknowledgments

We are grateful to all the participants of the Justitia Amplificata workshop ‘The Legitimacy of Global Governance Institutions’ in Bad Homburg, January 2017, and of the panel ‘International Law and Legitimacy’ at the ECPR General Conference in Oslo, September 2017. In particular, we would like to thank Gleider Hernandez, Aiofe O’Donogue, Knut Olav Skarsaune, Jens Steffek, Vegard Tørstad, and the anonymous reviewers for very thoughtful questions and comments. Funding was provided by Justitia Amplificata, Goethe University Frankfurt [grant number FOR 1206] and by PluriCourts, University of Oslo [grant number 223274].

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. We do not take a position on the conceptual question as to whether legitimacy should be understood as an exclusive ‘right to rule’ connected to a duty to obey. In particular, we do not discuss whether these reasons need to be pre-emptive, in the Razian sense, or ‘weighty’ in some other way (e.g. Raz, 1986; p. 46; Buchanan, 2010, pp. 83–84). As such, we refer to sufficient, content-independent reasons for compliance, which we consider to be compatible with both understandings.

2. What we consider here as not minimally morally acceptable is what falls beyond the scope of the right to do wrong in Adams’ understanding (this issue).

3. For a more detailed account of how institutional competences influence the required legitimacy standards see Scherz (2019).

4. Voeten (2005) argues for a restricted version of this argument, namely that the legitimacy of the UNSC is given if it makes the unauthorised use of power costly, not impossible.

5. Buchanan and Keohane define minimal moral acceptability as the requirement to ‘not persist in committing serious injustices’ (2006, p. 419). Our definition highlights how these injustices can only be understood if equality is considered.

6. The Council consists of fifteen Member States: five permanent members and ten seats that are assigned by election for a set period of two years, as regulated in Article 23(2).

7. We apply the all-subjected not the all-affected principle in this paper (for a discussion of the difference between these principles, see Näsström (2011) and Scherz (2013).

8. A/RES/48/26 http://www.un.org/documents/ga/res/48/a48r026.htm .

9. Their report is accessible at http://www.securitycouncilreport.org.

10. Article 32 provides similar access for non-UN members.

11. Cf. https://www.un.org/sc/suborg/en/.

12. The S5 consisted of Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland. Their initiative lasted form March 2006 until May 2012, and later created the May 2013 launch of the follow-up project ACT for Accountability, Coherence, and Transparency by 22 governments. Draft resolution A/66/L.42/Rev.2, entitled ‘Enhancing the accountability, transparency and effectiveness of the Security Council’.

13. See also Christiano’s contribution in this issue on the legitimacy of the ICC’s jurisdiction.

Additional information

Notes on contributors

Antoinette Scherz

Antoinette Scherz is a Postdoctoral Fellow at PluriCourts. She has previously been a Research Fellow & Permanent Member of the Board of Directors at the Centre for Advanced Studies: ‘Justitia Amplificata’ at the Goethe University Frankfurt (2015–2017), a Postdoctoral Research Fellow also with Justitia Amplificata (2014–2015), and Research Fellow at the University of Zurich (2009–2014). Antoinette Scherz works in the field of political philosophy, with special interest in international political theory, legitimacy, democratic theory, the people, and autonomy. She has published articles in journals such as European Law Journal and Ethnic and Migration Studies.

Alain Zysset

Alain Zysset is a Lecturer in Public Law at the School of Law, University of Glasgow. Prior to joining Glasgow, he held positions in Durham, Oslo (PluriCourts, 2016–2017), Florence (Max Weber Fellowship, 2015–2016), and Frankfurt am Main (Excellence Cluster Normative Orders, 2014–2015). Alain’s areas of specialisation include human rights law (in particular the ECHR), international criminal law (in particular crimes against humanity and genocide), and legal and political theory (in particular human rights theory, democratic theory, and criminal law theory). He is the author of The ECHR and Human Rights Theory published by Routledge in 2016.