The concept of legitimate authority is becoming increasingly pertinent in a world characterised by non-state entities, including international organisations, cyber actors and transnational terrorism.

Reflecting on the remarkable endurance of just war theory, Michael Walzer observed that the theory’s historical attendance to power had significantly contributed to its survival as a political theory. The core principle that most clearly sets forth power as a requisite aspect of the theory is legitimate authority, which stipulates that a decision to go to war must be made by an appropriate public authority.

The evolution of notions of legitimate authority throughout history, and its focus on the role of monarchs, has led to the state acting as the primary legitimate authority today – although this is subject to challenge. There is considerable academic and political confusion around what constitutes legitimate authority in international society today. This has been produced by contemporary challenges such as the role of supranational institutions in the use of force, as well as the engagement of states with non-state actors in conflict.

While classical just war theorists identified the principle as the ‘first requirement’ of just war, contemporary analysis – including in Walzer’s own work – has tended to regard legitimate authority as peripheral to core debates relating to the cause and conduct of just war. Contrary to the prevailing trend in just war scholarship, the concept is in fact more relevant now than ever before. Determining what precisely constitutes legitimate authority is perhaps more difficult and complex, given the wide variety of actors involved and the scope of modern international law, than at any other time. And this is precisely why discussion of legitimate authority should be revived in the contemporary debates about just war.

One of the most contested elements in the rules-based international society is the role of the Security Council in determining legitimate authority. The body has been deemed ‘undemocratic’, a ‘talking shop of the nations’ and inherently contradictory. Reform of the institution has been an ongoing and protracted issue at the UN. The power of the Security Council to determine legitimacy has been critically tested in a number of instances since the end of the Cold War.

Comparing and contrasting the cases of Kosovo (1999) and Iraq (2003), both of which are examples of unsanctioned use of force by the US, demonstrates the legitimising power of the Security Council even in cases where a resolution is not made. As Justin Morris and Nicholas J. Wheeler highlighted, it was the legitimacy claims of the US made ‘within, rather than in disregard of, existing normative frameworks’ in the Kosovo case ‘that explains the different international response to the US-led invasion of Iraq in 2003’. While the Security Council may still not work as it was imagined to by the original founders in 1945, it continues to play a critical role in defining legitimate authority in the use of force today.

Non-state actors, which include a range of different players in contemporary international society, have presented other challenges to the concept of legitimate authority. Particularly pertinent is the question surrounding the status of unlawful combatants the US has assigned to jihadist groups and the way in which this impacts the methods and techniques employed to target them. Beyond jihadist groups, international society is also grappling with the rise of non-state cyber actors and paramilitary organisations in war. Non-state actors are not a new phenomenon, however what is distinctive is that these questions are now being situated within the frameworks of modern international law, raising questions about accountability.

As it stands legitimacy and, importantly, accountability in the use of force rests solely with states, especially when operating collectively. International norms developed in the 20^th century, seen in the Charter of the UN, reinforce the role and responsibility of the state in the use of force, as well as the protection of human rights. While legitimate authority continues to rest with states, the process of determining state legitimacy has fundamentally changed over time and continues to change. This ongoing evolution and the contestation surrounding notions of legitimate authority emphasise the need for attention to this principle in discussion of war.

For the full version of the article, please see the 2014 Emerging Scholars Journal.

Rosalyn Turner is a former AIIA National Office intern. She graduated from the University of New South Wales in 2013 after completing a Bachelor of Arts (Hons) majoring in international and political studies. Rosalyn completed an internship with the Australian Strategic Policy Institute in 2014 and continues to work with the organisation. Rosalyn can be contacted by email: rosieturner89@gmail.com. This article can be republished with attribution under a Creative Commons Licence.