'The Uses and Abuses of Legitimacy in International Law'
(2014) 34 (4) Oxford Journal of Legal Studies
In recent decades, the term 'legitimacy' has featured heavily in debates about international law and international institutions. Yet the concept of legitimacy, mercurial as it is, has remained under-scrutinized, leading to confusion and misuse. Rather than advancing a particular conception of what may make international law legitimate, this article seeks to clarify and complicate how international lawyers understand and use legitimacy as a concept. To begin, the article distinguishes between legal, moral and social legitimacy. It highlights the different ways in which these three approaches to legitimacy have been used in international law scholarship, while drawing attention to some of their more problematic tendencies. From there, it breaks the concept of legitimacy down into three major elements: its object, subject and basis. It argues that the tendency to blur these elements has led to much of the uncertainty and obfuscation in legitimacy debates. Finally, the article stresses the importance of distinguishing legitimacy from other grounds for compliance, including coercion, self-interest and habit. Ultimately, it argues that if treated with sufficient rigour, legitimacy provides a useful analytical concept for international lawyers. In doing so, it aims to encourage and facilitate the participation of international lawyers in broader inter-disciplinary debates about legitimacy.
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‘Addressing the Turn to Science in International Law' (2014)
63 (1) International and Comparative Law Quarterly pp.236-42
Case Note: R (Corner House Research & Anor) v Director of
the Serious Fraud Office [2009] 1 AC 756, Oxford Reports on International
Law (2012)
Book Review: 'Isabel Feichtner, The Law and Politics of WTO
Waivers: Stability and Flexibility in Public International Law' (2011) 82(1)
British Year Book of International Law 515-18
Case Note: R (Bancoult) v Secretary of State for Foreign
and Commonwealth Affairs (No 2) [2009] 1 AC 453, Oxford Reports on
International Law (2011)
Settlement' (2011) 14 (2) Journal of International Economic Law
295
World Trade Organization panels are regularly required to address specifically
economic evidence and arguments when resolving disputes. Economic arguments
provide the basic foundations for many disputes, and parties are proving
increasingly willing to contest the facts underlying those arguments. Despite
this, panels have often failed to engage satisfactorily with economic reasoning.
The deficiencies in panels’ reasoning have been exacerbated by their refusal to
seek information and advice from independent economic experts. This approach is
neither necessary nor productive. It undermines the epistemic legitimacy of
individual panel reports and the political legitimacy of the dispute settlement
system more generally. More careful and rigorous panel engagement with economic
evidence, as assisted by independent experts acting within appropriate limits,
would go some way to reducing this legitimacy deficit while improving the
accuracy and finality of the dispute settlement system.
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(with Carolyn Evans) 'Church–State Relations in the European
Court of Human Rights' [2006] Brigham Young University Law Review 699-726
