\\server05\productn\N\NYI\38-4\NYI404.txt unknown Seq: 1 4-JAN-07 9:33 LEGITIMACY OF GOVERNMENTS IN THE AGE OF DEMOCRACY JEAN D’ASPREMONT* TABLE OF CONTENTS I. INTRODUCTION .................................. 878 R II. THE MULTIFACETED CONCEPT OF LEGITIMACY .... 881 R III. LEGITIMACY IN THE AGE OF DEMOCRACY AND THE MONOLITHIC CONCEPTION OF LEGITIMACY IN MAINSTREAM LEGAL DOCTRINE ................... 884 R IV. THE LEGITIMACY OF ORIGIN AND THE LEGITIMACY OF EXERCISE AND THEIR RESPECTIVE ROLES IN THE AGE OF DEMOCRACY ............................. 894 R A. The Need for a Distinction Between the Legitimacy of Origin and the Legitimacy of Exercise ........ 894 R 1. The Substantive Elements of Democracy ..... 895 R 2. Legitimacy in Practice ..................... 899 R a. Recognition of Governments ....... 901 R b. Accreditation of Delegates .......... 903 R c. Intervention by Invitation........... 906 R B. The Qualification and Disqualification Roles of Legitimacy and the Expanding Role of the Legitimacy of Exercise ......................... 909 R 1. The Qualification Role of the Legitimacy of Origin and the Disqualification Role of the Legitimacy of Exercise ..................... 909 R a. Qualification of Governments: The Legitimacy of Origin.............. .910 R * Lecturer in International Law, University of Leiden; Global Research Fellow, NYU Law School (2005-2006); Ph.D. University of Louvain (2005); LL.M. University of Cambridge (2001). This is a revised version of a paper first presented in September 2005 in the Global Fellows Forum organized by the Hauser Global Law School Program. This paper also draws on the doc- toral thesis of the author that will soon be published in the form of a book (Les Etats non democratiques´ et le droit international). The author wishes to thank Andrew Hurrell, Benedict Kingsbury, Joseph Weiler, and the partici- pants in the Global Fellows Forum for comments and criticisms on earlier drafts. He also thanks Zoe Salzman for her very insightful assistance. All er- rors remain, of course, the author’s own. Email: [email protected] univ.nl. 877 \\server05\productn\N\NYI\38-4\NYI404.txt unknown Seq: 2 4-JAN-07 9:33 878 INTERNATIONAL LAW AND POLITICS [Vol. 38:877 b. Disqualification of Governments: the Legitimacy of Exercise .............. 910 R 2. The Need for a Swift Appraisal of Governments’ Legitimacy .................. 911 R 3. The Expanding Disqualification Role of the Legitimacy of Exercise ..................... 913 R V. CONCLUSION .................................... 916 R I. INTRODUCTION The question of legitimacy has always been a source of great controversy among international legal scholars.1 This enduring doctrinal debate can be traced back to a basic reality of the international legal order, namely that states are legal persons acting through their governments. The international legal order is consequently a legal order where legal persons act via proxies. These surrogates are not, however, immutable entities. Indeed, governments are short-lived bodies whose ex- istence is contingent upon the form of political regime, the internal stability of the state concerned, and, ultimately, the life span of the human beings at their helm. As a result, the representatives of the legal persons in the international legal order are frequently being replaced. This recurrent and inescapable reshuffle of governments has prompted a need for criteria to determine who is entitled to speak and act on behalf of each state. This necessity to de- termine each state’s representative in the international arena is the essence of the concept of legitimacy in international re- lations. A legitimate authority (government) is the one enti- tled to speak and act on the behalf of a state. In that sense, legitimacy empowers an authority to act and speak on behalf of the state.2 The highly controversial character of governments’ legiti- macy stems from the subjectivity of its evaluation. Indeed, there are no objective criteria to determine governments’ le- 1. The most recent book that tackles this question is B. R. ROTH, GOV- ERNMENTAL ILLEGITIMACY IN INTERNATIONAL LAW (2000). 2. See, e.g., CARL J. FRIEDRICH, MAN AND HIS GOVERNMENT 234 (1963) (defining the question of legitimacy as “the question of fact whether a given rulership is believed to be based on a good title by most men subject to it”). See also Norberto Bobbio, Sur le principe de legitimit´ e´, 32 DROITS : REVUE FRAN- CAISE¸ DE THEORIE´ , DE PHILOSOPHIE ET DE CULTURE JURIDIQUES 148 (2000). \\server05\productn\N\NYI\38-4\NYI404.txt unknown Seq: 3 4-JAN-07 9:33 2006] GOVERNMENTS IN THE AGE OF DEMOCRACY 879 gitimacy.3 That means that each state enjoys a comfortable leeway when asked to recognize the power of an entity that claims to be another state’s representative in their bilateral inter- course. Each state evaluates foreign governments’ legitimacy through the criteria that it chooses. International legal rela- tions are therefore replete with situations where a government is deemed legitimate by some states and illegitimate by others.4 The uncertainty surrounding the concept of legitimacy was not alleviated by the end of the Cold War. Although the almost unanimous acceptance of the democratic model brought about by the end of the ideological division of the world has profoundly eroded our understanding of the legiti- macy of governments, disagreements about legitimacy have not faded. Controversies about the legitimacy of governments continue to arise, particularly when an elected government fails to respect the substantive elements of democracy. Such governments are known as illiberal democracies.5 Illiberal democracies have long existed. During the 1990s, a handful of governments could be listed as illiberal de- mocracies.6 In the direct aftermath of the Cold War, however, they were tolerated because it was assumed that the contempt for the substantive elements of democracy was temporary and that it constituted a necessary transition stage for newly elected governments towards a consolidation of their regime.7 Al- though some of these illiberal democracies have actually been 3. JOE VERHOEVEN, DROIT INTERNATIONAL PUBLIC 90 (2000) [hereinafter Verhoeven, Droit International]; JOE VERHOEVEN, LA RECONNAISSANCE DANS LA PRATIQUE CONTEMPORAINE 597-603 (1975) [hereinafter VERHOEVEN, LA RE- CONNAISSANCE]. 4. See, for instance, the discrepancies between the Russian and U.S. – E.U. positions with regards to the elections in Belarus. On this topic see C. J. Chivers & Steven Lee Myers, U.S. Calls Belarus Vote for Leader Invalid, N.Y. TIMES, Mar. 21, 2006, at A6; C. J. Chivers, U.S. and Europe Plan Sanctions Against Belarus, N.Y. TIMES, Mar. 25, 2006, at A1; Steven Lee Myers, World Briefing Europe: Belarus: Putin Backs Leader, N.Y. TIMES, Apr. 29, 2006, at A7. 5. Fareed Zakaria, The Rise of Illiberal Democracies, 76 FOREIGN AFF. 22 (1997). 6. For examples of illiberal democracies that have, in the meantime, turned more respectful of human rights, see Id., at 23, 28. 7. See generally, Francis Fukuyama, The End of History, THE NAT. INTEREST, Summer 1989, at 3-19. \\server05\productn\N\NYI\38-4\NYI404.txt unknown Seq: 4 4-JAN-07 9:33 880 INTERNATIONAL LAW AND POLITICS [Vol. 38:877 replaced by full-fledged democracies,8 many of them have per- sisted and even been strengthened.9 New illiberal democracies have come into existence. The recent elections in the Middle East, especially in Egypt,10 Iran,11 Tunisia,12 Pakistan,13 and Palestine,14 have shown that illiberal democracies comprise a distinct phenomenon of our time.15 The criteria to assess the legitimacy of governments that have been developed by mainstream legal scholarship are overly simplistic and fail to address the situation of illiberal de- mocracies. Indeed, illiberal democracies are endowed with some democratic features, as their governments have usually gone through an electoral process. They can thus claim some form of legitimacy. They cannot, however, be considered wholly legitimate given their disrespect for some of the sub- stantive elements of democracy. In this paper, I offer a more elaborate understanding of the legitimacy of governments in order to deal with the rise of illiberal democracies. I argue that a distinction must be drawn between the legitimacy of origin and the legitimacy of exercise. While the former is based on the source of power, the latter pertains to the way this power is employed. Each of these types of legitimacy plays a different role. To spell out the re- spective roles of the legitimacy of exercise and the legitimacy of origin, I draw a distinction between the qualification and dis- qualification of governments. If a new government secures in- ternational recognition and its delegates are accredited within international organizations, it qualifies as the legitimate repre- 8. Clifford Krauss, Peru’s New Chief Sworn In, Vowing to Revive Democracy, N.Y. TIMES, Nov. 23, 2000, at A14. 9. See supra notes 5 and 6. 10. Michael Slackman, et al., Egypt Pushes 2-Year Delay In Local Vote, N.Y. TIMES, Feb. 14, 2006, at A1. 11. Michael Ignatieff, Iranian Lessons, N.Y. TIMES MAGAZINE, July 17, 2005, at 50-51. 12. Editorial, Undemocratic Tunisia, N.Y. TIMES, Feb. 18, 2004, at A18; Kamel Labidi, The Wrong Man to Promote Democracy, N.Y. TIMES, Feb. 21, 2004, at A15. 13. See infra note 107. 14. See James Glanz, A Little Democracy or a Genie Unbottled, N.Y. TIMES, Jan. 29, 2006, at 4-1; Francis Fukuyama, After Neoconservatism, N.Y. TIMES MAGA- ZINE, Feb. 19, 2006, at 67; Steven Erlanger, Hamas Leader Sees No Change To- ward Israelis, N.Y. TIMES, Jan. 29, 2006, at 1-1. 15. These examples are further discussed below. See infra Part IV.B.3. \\server05\productn\N\NYI\38-4\NYI404.txt unknown Seq: 5 4-JAN-07 9:33 2006] GOVERNMENTS IN THE AGE OF DEMOCRACY 881 sentative entitled to speak and act on behalf of the state. But I also demonstrate that legitimacy can have a disqualification function when a government previously seen as the legitimate representative entitled to act and speak on behalf of a state is disqualified from being the representative of that state.