A Quest for Legitimacy : Debating UN Security Council Rules on Terrorism and Non-proliferation
Abstract: Since the end of the Cold War, international politics and international law have not only become increasingly intertwined, but their mutual implications have also become increasingly recognized by scholars. Yet research explicitly addressing the question of how political factors affect the emergence of legal rules is still limited. This doctoral dissertation aims to take a step in the direction of solving that puzzle by focusing on the construction of legitimacy at the crossroads between international politics and international law. It is argued that all forms of international rule-making, whether through the international legal process or in more political forums, depend on being perceived as legitimate, but that they may differ in terms of what normative values their claim to legitimacy is based on. Viewing legitimacy as a continuously and socially constructed concept, this study focuses on the practice of legitimation. Distinguishing two logics of legitimation - one legal and one political - the author develops a framework for the analysis of so-called legitimation arguments. Each logic further consists of two elements of legitimacy: one procedural and one more substantive. In the case of the legal logic, these correspond to legality and justifiability, whereas in the political logic they are represented by consent and efficiency. This framework is then used to analyze states' legitimation arguments in relation to UN Security Council resolutions 1373 (on terrorism) and 1540 (on non-proliferation), which take the unprecedented step of creating instant and legally binding obligations for all 192 UN member states. The analysis demonstrates that all four elements figure prominently in states' legitimation arguments, thereby illustrating the utility of the framework. Furthermore, it reveals that political elements are often perceived as valid compensations for their legal counterparts in the general construction of legitimacy. With the Unites States being the initiator and main advocate for the creation of legal obligations through the Security Council, it is also possible to discuss these resolutions in terms of (collective) hegemonic international law. Lastly, the author concludes that a focus on the construction of legitimacy is a useful approach for analyzing the interrelationship between international politics and international law and that the deliberate substitution of political elements for legal ones in actors' legitimation arguments constitutes one example of how political factors may affect the emergence of legal rules.
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