Legitimacy, Legality and the Added Value of HRIAs

For some authors, legality is a constituent element of legitimacy, so that the legitimacy of inter-national law should be exclusively assessed through the perspective of legality.²⁷⁵ Others use legitimacy as a corrective to justify acts that are formally illegal but regarded as morally

270 Armin von Bogdandy, Philipp Dann, and Matthias Goldmann, ‘Developing the Publicness of Public In-ternational Law: Towards a Legal Framework for Global Governance Activities’, German Law Journal, 9 (2008), pp. 1375–1400, p. 1380.

271 Bryde, ‘Konstitutionalisierung des Völkerrechts und Internationalisierung des Verfassungsrechts’

(above, n. 203), p. 67

272 Bogdandy, Dann and Goldmann, ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities’ (above, n. 270), p. 1380.

273 See section 9.2.

274 Ibid., p. 1389.

275 For further reference: Ibid.

sary, as recently advocated by defenders of the NATO intervention in Serbia and Kosovo.²⁷⁶ The concept of legitimacy here shall not be used in a way to correct judgments of illegality like in the Kosovo case, but rather to correct (or complement) judgments of legality, namely acts that ap-pear to be legal from a traditional public law perspective but that raise legitimacy concerns, as described in the following section. This second constellation is relevant to HRIA law.

Further, a common distinction is drawn between social and normative approaches to legitimacy.

The sociological concept focuses on actual recognition and acceptance of authority.²⁷⁷ Normative approaches, on the other hand, focus not on the (factual) acceptance but on the (normative) ac-ceptability²⁷⁸ of authority, depending on whether a claim of authority is “well-founded”.²⁷⁹ Nor-mative legitimacy is understood broadly as the justification of authority. While the legality²⁸⁰ of an act is often regarded as a prerequisite for legitimacy, this is not the only standard against which legitimacy is measured.

Often due to a lack of clear and determinate legal norms, recourse is made to the concept of legit-imacy to assess acts of public authority, resulting in the evaluation that an act may be legal but illegitimate, for example because no appropriate standards exist for new phenomena or because the deformalized and fragmented world order impedes to find a consensus on applicable legal norms.²⁸¹ While, for example, human rights are fundamental constitutional principles of EU ex-ternal relations law²⁸², what these principles actually mean in the extraterritorial context is still largely unclear. It is therefore important to fill this normative gap and identify procedural or substantive norms that allow responding to new challenges in a global world order. One of these normative responses could be the use of legally embedded human rights impact assessments,

276 Bruno Simma, ‘NATO, the UN, and the Use of Force: Legal Aspects’, 10 (1999), pp. 1–22, p. 22.

277 Daniel Bodandsky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, 93 (1999), pp. 596–624, p. 601; Luhmann defines legitimacy as “den faktische[n]

Glauben an die Richtigkeit und Werthaftigkeit bestimmten Sollens”: Niklas Luhmann, Legitimation durch Verfahren (Frankfurt am Main: suhrkamp, 1993), 3. Aufl., p. 239.

278 Matthias Goldmann, Internationale öffentliche Gewalt (Berlin, Heidelberg: Springer Berlin Heidelberg, 2015), p. 129.

279 Bodandsky, ‘The Legitimacy of International Governance: A Coming Challenge for International Envi-ronmental Law?’ (above, n. 277), p. 601; Niels Petersen, Demokratie als teleologisches Prinzip (Heidelberg:

Springer, 2009), p. 7. The sociological definition of legitimacy has the great advantage of providing a rela-tively clear-cut definition of a complex concept. However, there are practical and normative objections:

First, it is difficult to measure the acceptance of systems: elections – unless those for a constitutional as-sembly - generally do not express opinions about a system, but about the representatives within a pre-defined political order, and the lack of opposition especially in autocratic regimes can rather be a result of fear than of a free will. From a normative perspective, factual acceptance without consideration of the reason for acceptance is normatively void: The popular acceptance of national-socialism in Germany did not make the regime normatively legitimate. Ibid., p. 8; Bodandsky, ‘The Legitimacy of International Gov-ernance: A Coming Challenge for International Environmental Law?’ (above, n. 277), p. 602.

280 Some authors would still distinguish between normative and legal legitimacy, equating the latter with legality. With reference to Kelsen: Yves Bonzon, Public Participation and Legitimacy in the WTO (Cam-bridge: Cambridge University Press, 2014), p. 43.

281 Similar: Bogdandy, Dann and Goldmann, ‘Developing the Publicness of Public International Law: To-wards a Legal Framework for Global Governance Activities’ (above, n. 270), p. 1389; Martti Koskenniemi,

‘Global Governance and Public International Law’, Kritische Justiz, 37 (2004), pp. 241–254, p. 243; Eyal Benvenisti and George Downs, ‘The Empire's New Clothes: Political Economy and the Fragmentation of International Law’, Stanford Law Review, 60 (2007), pp. 595–631.

282 Explicitly, for example, in Articles 2, 3 (5) and 21 TEU. More on the role of fundamental and human rights in EU law see section 4.7.4.

which I suggest can protect human rights based on the concept of human rights protection through organization and procedure.²⁸³

What, then, does “justification of authority” in the sense of normative legitimacy theories mean?

This is subject to complex scholarly debates, not least because it not only touches on issues of law but of justice in general. However, for the purpose of this thesis, simply two broad distinc-tions between input-oriented vs. output-oriented approaches should be made.²⁸⁴ Even though often presented as juxtapositions, they are not necessarily incompatible but are sometimes even mutually reinforcing.²⁸⁵ Institutionalized HRIA can, theoretically, increase both input and output legitimacy.

Input-oriented approaches²⁸⁶ emphasize the importance of institutions, such as democratic in-volvement in decision-making, which determine how a decision is made. Governing processes must be responsive to the preferences of those who are governed.²⁸⁷ Elections, participation, and principles such as transparency are some of the factors that can increase input legitimacy. Im-pact assessments can contribute to input-legitimacy, especially if one regards them as a mainly procedural instrument to further broad objectives in situations where precise substantive standards are missing. The dialogue between decision-makers, other interested institutions, and stakeholders as well as those affected by a decision can turn impact assessments into an instru-ment to increase input-legitimacy.²⁸⁸

The starting points for output-oriented approaches are the consequences of decisions or the effects produced by an institutional design. These approaches have gained increasing im-portance in debates about the democratic deficit of the European Union.²⁸⁹ Output-oriented ap-proaches can be used for the evaluation of legal and policy instruments if one compares their output with their self-proclaimed objectives.²⁹⁰ Consequently, impact assessments can contrib-ute to increasing output-legitimacy if they actually promote better decisions. What “better”

means depends on the self-proclaimed objectives of the respective IA-regimes: It can mean that decisions are more efficient (regulatory IAs), more environmental-friendly (environmental IAs) or more compliant with human rights (human rights IAs). In this sense, IAs can be seen as an analytical problem-solving tool. Generally, policy-makers are committed to increase the positive and avoid, minimize, or mitigate the negative impacts of their decisions. Whether or not IAs con-tribute to achieving that goal determines whether they can increase the output-legitimacy of the final act. How IAs can, at least on a conceptual level, increase compliance and efficiently influ-ence decision-making will be discussed below.

283 See section 3.2.1.5.

284 Fritz Scharpf, ‘Problem-Solving Effectiveness and Democratic Accoutability in the EU’, in: Political Sci-ence Series 107, 2006.

285 Goldmann, Internationale öffentliche Gewalt (above, n. 278), p. 129.

286 Input legitimacy is sometimes referred to as procedural legitimacy: Annica Kronsell and Karin Bäck-strand, ‘Rationalities and form of governance’, in: Karin Bäckstrand (ed.), Environmental politics and delib-erative democracy, pp. 28–46, p. 39; Brownsword and Goodwin, Law and the Technologies of the Twenty-First Century (above, n. 56), p. 179.

287 Fritz Scharpf, ‘Problem-Solving Effectiveness and Democratic Accoutability in the EU’ (above, n. 284), p.

2.

288 Craik, ‘Deliberation and Legitimacy in Transnational Governance: The Case of Environmental Impact Assessments’ (above, n. 177).

289 Fritz Scharpf, ‘Problem-Solving Effectiveness and Democratic Accoutability in the EU’ (above, n. 284).

290 Goldmann, Internationale öffentliche Gewalt (above, n. 278), p. 131.