NGO participation in international lawmaking and democratic legitimacy The debate and its future

Over the last few decades, scholars - mainly in the field of law and international relations - have argued that NGOs are indispensable in making international law more democratically legitimate. This study refers to this as the ‘NGO democratic legitimacy thesis’. The thesis is presented as a response to concerns about democratic legitimacy fueled by, among other recent developments, the increasing regulatory autonomy of international organizations and the increased informality of international lawmaking. This study critically revisits the debate on the NGO democratic legitimacy thesis. It delves into the concept of democratic legitimacy and uses it as an analytical framework to assess the thesis. It first reviews developments in international lawmaking, including NGOs’ participation, and assesses concerns regarding the democratic legitimacy of international law. By virtue of a renewed analytical framework, this study assesses the use of the analytical terminology of democratic legitimacy. Ultimately it concludes that the NGO democratic legitimacy thesis rests on rather weak foundations. In contrast to the strong focus on NGOs internal democratic legitimacy, scholars tend to put relatively little emphasis on the institutional preconditions necessary for the democratic legitimation of law. This study criticizes this lack of attention to institutional preconditions and discusses the conceptual and practical impasses of institutional preconditions at the international legal level. Finally, this study moves beyond the NGO democratic legitimacy debate by proposing an analytical term that better fits understanding NGOs’ contributions to international lawmaking: a quality justification of international law.