The Search for Legitimacy in International Law: The Case of the Investment Regime
Despite the universal acceptance of legitimacy in international law, this Article contests the usual explanatory role given to the concept. This Article argues that, due to its conceptual peculiarities, legitimacy cannot fulfill the role it is expected to play. Usually, the literature treats legitimacy as having a twofold dimension: a descriptive and an evaluative (or normative) part. This Article’s contention is instead that legitimacy as a concept is a purely evaluative and that, as a result, it cannot be circumscribed. Due to the lack of conceptual boundaries, there is no possibility of empirically tracing a causal relationship between legitimacy and order. The concept is so expansive that it is explanatory for everything and, hence, nothing. Meaning, whenever a social arrangement is seen as stable it is due to legitimacy; whenever a social arrangement is changing it is also due to legitimacy; and whenever a social arrangement is collapsing it is yet again due to legitimacy. This Article advocates a re-evaluation of the concept and its usage. To illustrate my claims, this Article will analyze the case of the investment regime. The investment regime represents a paradigmatic instance of the broader transformations undergoing the international legal order. The debate concerning the legitimacy of the investment regime shows the usual ways in which legitimacy appears in the literature and how it is conceived. Thus, the investment regime provides a fruitful arena in which to discuss some of the conceptual criticisms that are put forth here. It follows that, although the Article’s focus is primarily on the investment regime due to its central role in international law and global governance, the Article also aspires to shed light on parallel debates within international law.
Recommended Citation: Alexis Galán, The Search for Legitimacy in International Law: The Case of the Investment Regime, 43 Fordham Int'l L.J. 79 (2019).