Legitimacy and Legality in International Law

Abstract

It has never been more important to understand how international law enables and constrains international politics. By drawing together the legal theory of Lon Fuller and the insights of constructivist international relations scholars, this book articulates a pragmatic view of how international obligation is created and maintained. First, legal norms can only arise in the context of social norms based on shared understandings. Second, internal features of law, or 'criteria of legality', are crucial to law's ability to promote adherence, to inspire 'fidelity'. Third, legal norms are built, maintained or destroyed through a continuing practice of legality. Through case studies of the climate change regime, the anti-torture norm, and the prohibition on the use of force, it is shown that these three elements produce a distinctive legal legitimacy and a sense of commitment among those to whom law is addressed.

Preservation of Ecosystems of International Watercourses and the Integration of Relevant Rules

“…With such specificity and clarity in the procedural aspect of the conservation of wetlands, that highlights the pivotal role of the framework for the planning and management of wetland sites, the obligation to conserve under Articles 2.1 and 4.1 satisfies the clarity criterion imposed under Fuller's legality criteria. Moreover, 'clarity is more of a work that is in progress with respect to the convention's substantive provisions' 1045 where the open textured principles or provisions 'serve as guideposts for this continuous law-making enterprise'. 1046 Thus, the progressive clarification of the rules on the conservation of wetlands necessary to attain legality is forged and promoted over time through a structured procedural framework.…”

Enabling the Contextualization of Legal Rules in Responsive Strategies to Climate Change

“…In international law, joint responsibilities are established for the protection of public values. Good examples are the elaboration of the United Nations Framework Convention on Climate Change and the Kyoto Protocol (Gupta et al 2009, Brunnée andToope 2010). International law is agenda setting and it prepares national states and citizens to undertake action within general frameworks (Sabel and Zeitlin 2010).…”

“…For this reason, we take an institutional instead of instrumental perspective in our exploration of the legal potential in responsive strategies. This institutional reflection inducts deliberation of principal norms at the rule level of social interaction rather than the instrumental steering of specific purposes, means, and requirements of action (Fuller 1964, Witteveen and van der Burg 1999, Brunnée and Toope 2010. This deliberation is more principled but also more abstract than specific purposeful action: it conditions social action rather than prescribes the ways to proceed.…”

“…This deliberation is more principled but also more abstract than specific purposeful action: it conditions social action rather than prescribes the ways to proceed. From this perspective, the statement of the article is that in order to strengthen responsive strategies towards challenges of climate change, we are in search of a strategy of legal obligation (Brunnée and Toope 2010), which embodies the principle of legality and at the same time conditions and commits the probing of different purposive response in different contexts. This institutional perspective on law and legislation is explained in more detail hereafter, and is followed by an exploration of the challenges of the legal perspective.…”

The Responsibility to Protect and the Use of Force: Building Legality?

“…69 Shared understandings are collectively held background knowledge, including social norms and practices. But these understandings do not simply exist, or spontaneously emerge as agreed among actors.…”