Page 42 - THE INTERNATIONAL OLYMPIC COMMITTEE’S ACCOUNTABILITY FOR HARMFUL CONSEQUENCES OF THE OLYMPIC GAMES- A MULTI-METHOD INTERNATIONAL LEGAL ANALYSIS Ryan Gautier

Chapter Two – Global Governance and Legitimacy
condition, where an institution is either legitimate and is met with perfect compliance, or is illegitimate and met with constant non-compliance. Instead, legitimacy is a matter of degree.37 Compliance with an institution may be imperfect, disregarded by some actors in some situations, yet the institution may be seen as generally legitimate.38 For instance, the legal principle of pacta sunt servanda (‘agreements must be kept’) requires parties to a contract/treaty to keep those agreements. However, one party to a contract may renege on its obligations. This does not mean that the party considers the principle of pacta sunt servanda illegitimate, nor does it necessarily mean that the party considers the contract to be illegitimate. Instead, it is more likely that the party to the contract considers (and justifies) its withdrawal or failure to meet its obligations as exigencies, or anomalies, rather than a repudiation of the entire principle of pacta sunt servanda or the subject area that the agreement is regulating.
How much legitimacy must an institution ‘possess’ to engender compliance amongst actors that it seeks to influence? Three factors should be considered, which then provide a rough idea of how much legitimacy an institution will require to carry out its mandate. The first factor is the kind and degree of authority that the institution is exercising.39 The more authority that an institution exercises, and the more that authority replaces the decision-making of those who are regulated, a higher amount of legitimacy is necessary to engender compliance. The second factor is the subject matter that is being regulated by the institution. A simple way to conceive of this factor is the traditional dichotomy of ‘high politics’ (matters of survival of the state—e.g., economy, security), and ‘low politics’. The more the subject matter is an issue of ‘high politics’, the more legitimacy is required by the institution. However, this dichotomy is contentious, and should be used as a rough benchmark at best, as the example of the Olympic Games show. The third factor is the possibility of creating an alternative regime.40 If no feasible
states, he does use the word ‘institutions’. As such, his work should be seen as a product of his time, when international law and international relations were primarily concerned with states and only just beginning to address other actors, instead of a limiting factor, where legitimacy is only applicable to states.
37 ibid 48.
38 Hurd (n 35) 43–44.
39 Daniel Bodansky, ‘The Concept of Legitimacy in International Law’ Rüdiger Wolfrum and Volker Röben (eds)
Legitimacy in International Law (Springer 2008) 316. 40 Buchanan and Keohane (n 6) 424.
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