Substance- or legitimacy-oriented (de)legitimation of global governance institutions. The double-edged role of complexity

ABSTRACT

This paper contributes to International Relations studies on the (de)legitimation of global governance institutions by introducing a focus on substance-oriented (de)legitimation practices to complement existing legitimacy-oriented perspectives. Building on the distinction between performance and performativity, the paper clarifies the concepts of performing (de)legitimation as legitimacy-oriented and performative (de)legitimation as substance-oriented. It argues that while the former primarily aims to contest or establish legitimacy, the latter targets substantive outcomes but affects legitimacy as a by-product. The paper introduces three distinguishing criteria – orientation toward legitimacy or substance, focus on form or function, and justificatory or substantive manifestation – to differentiate between the two. Their empirical manifestation is illustrated through a case study of the United Nations’ open-ended intergovernmental working group on business and human rights, which highlights the role of complexity and how it can serve both sets of (de)legitimation practices by contributing to legitimacy and substance, respectively.

KEYWORDS:

• legitimacy
• performance
• performativity
• global governance institutions
• business and human rights
• United Nations

1. Introduction

Legitimacy is pivotal in the realm of global governance, which lacks binding governing and accountability mechanisms. Hence, International Relations (IR) studies of the legitimacy of global governance institutions (GGIs) explore how global governors and their supporters enhance their legitimacy in the eyes of relevant audiences (self-legitimation and legitimation), and how they are contested (delegitimation). This focus on legitimacy has provoked criticism, as it risks neglecting the substance of GGIs’ activities. According to Hurd, valuing legitimacy over substance teaches GGIs ‘that the answer to their unpopularity lies in redoubling their strategies of legitimation, and it teaches scholars to pay attention to legitimation strategies rather than to the substantive decisions and outcomes of the institutions itself’ (Hurd, 2019, p. 724).

Some authors suggest reconciling this problem by focusing on delegitimation, crisis and contestation instead of legitimation (Gok & Mehmetcik, 2023, p. 7), or distinguishing between symbolic and substantial legitimation (Gregoratti & Uhlin, 2022; Zürn, 2018, p. 99) to identify the superficial (as opposed to real) effects of legitimation strategies. Another approach is to go beyond questions of legitimacy and investigate substantive outcomes instead. These approaches, however, tend to underestimate the close relationship between legitimation and delegitimation and how they affect substantive outcomes. Nor do they sufficiently explain practices that do not clearly legitimize or delegitimize a GGI when they deviate from certain norms by dealing with the substantive challenges at hand instead. While these practices are not primarily designed to (de)legitimize a GGI, they still affect its legitimacy.

This paper therefore explores another approach by combining studies on the (de)legitimation of GGIs with those on performance and performativity, in order to study the difference between performing a practice and a performative practice. On this basis, the paper distinguishes between two types of (de)legitimation practices. The first is performing (de)legitimation, which primarily aims to produce or contest legitimacy; it may also result in other outcomes. This is the main focus of (de)legitimation studies of GGIs in IR (Bexell et al., 2022c; Dingwerth et al., 2019b; Sommerer et al., 2022; Tallberg et al., 2018). The second type is performative (de)legitimation, which mainly seeks to produce substance-related outcomes; it generates legitimacy as a by-product. The paper argues that performative differs from the more common notion of performing (de)legitimation in three ways: it is oriented toward substance rather than legitimacy, it values function over form, and it manifests substantively rather than in a justificatory manner.

An illustrative case study of what is known as the Treaty Process – the United Nations’ (UN) open-ended intergovernmental working group (OEIWG) with a mandate to draft an international treaty on business and human rights – illustrates how performing and performative (de)legitimation practices in GGIs appear empirically. The case study draws on an extended qualitative content analysis of documents and interviews regarding deliberations in and about the OEIWG.

The category of complexity, inductively derived from the qualitative case study, vividly demonstrates the distinction between performative and performing (de)legitimation. Complexity appears in two forms. In the first, it provides a point of reference to justify arguments for or against the Treaty Process, thereby constituting performing (de)legitimation. In the second, it denotes a substance-oriented practice in which actors construct complexity as a challenge that can be dealt with, which contributes to legitimacy as a by-product – what this paper calls performative (de)legitimation.

The paper contributes to studies of GGIs in two ways. First, it evaluates substance-oriented practices that nonetheless affect the legitimacy of a GGI, and elaborates their differences from legitimacy-oriented practices. Second, the paper helps debunk the idea that global governance is an inherently desirable project, treating it instead as an empirical phenomenon that structures global politics and can pose or solve problems, and construct or challenge different content, norms and contexts.

The paper proceeds as follows. Section 2 introduces IR studies of legitimacy, legitimation, and delegitimation in GGIs. Section 3 identifies two strands of IR research on performance as staging and performativity as constructing reality. This distinction provides the basis for introducing the concepts of performative and performing (de)legitimation, and the development of three criteria to differentiate between the two (orientation, form vs. function, manifestation). Section 4 presents the case study of the UN Treaty Process on business and human rights, and considers how complexity is used in performing and performative ways. The paper concludes by summarizing the value added by the new concept, providing further clarifications and suggesting areas for future research.

2. Legitimacy, legitimation, and delegitimation in global governance institutions

This section introduces IR studies on legitimacy, legitimation, and delegitimation of GGIs. These are pervasive topics in the IR literature, particularly in the contested realm of global governance, which is characterised by a significant gap between decision-makers and those who are affected by the decisions (Gok & Mehmetcik, 2023), and the absence of formal, binding mechanisms. This holds particularly true for the issue area of business and human rights, which at the global level consists only of non-binding regulations and moral suasion; thus its regulation is highly dependent on legitimacy.

Legitimacy is usually studied in one of two forms. Normative legitimacy applies normative yardsticks of what is supposed to be perceived as good by an external observer, irrespective of a given audience’s belief (Agné, 2018, pp. 29–31). Empirical legitimacy, by contrast, expresses an audience’s trust in an institution (Dingwerth et al., 2019a, p. 8) that is based on shared norms (Hurd, 1999, p. 381). Audiences and their norms may be heterogeneous, just as the yardsticks of empirical and normative legitimacy may overlap.

Tallberg and Zürn (2019, p. 583) emphasize the close connection between GGIs’ authority and legitimacy: as GGIs increase their ‘political authority, the procedural and performance standards they have to meet to remain legitimate have increased as well. Efforts to legitimize or delegitimize [GGIs] invoke these standards to affect audiences’ legitimacy beliefs positively or negatively.’ This explains why a GGI’s authority depends on more than just power: it requires an audience that recognizes its legitimacy. While it may lose recognition and legitimacy, it cannot uphold authority in the long run without legitimacy (Buchanan & Keohane, 2006, p. 407; Mende, 2023a; Zürn, 2018, p. 9). Actors striving for (or contesting) legitimacy therefore aim to connect to or influence the audiences’ norms and perceptions, e.g. through justification, framing, and tailored communication (Schmidtke, 2019; Simmons, 1999; Zürn et al., 2012, p. 83).

Accordingly, legitimation studies of GGIs highlight norms, mechanisms, and processes of legitimation practices (Dingwerth et al., 2020). They shift the focus from legitimacy as an observable property of GGIs to legitimation and delegitimation (the processes that produce or contest legitimacy), understanding ‘legitimation as a process that may enhance beliefs in the rule of a political institution being acquired and exercised appropriately, and delegitimation as a process that challenges beliefs in the appropriateness of a political institution’s acquisition and exercise of authority’ (Bexell et al., 2022a, p. 26). This focus replaces straightforward assumptions about the success or failure of (de)legitimation practices in terms of legitimacy beliefs with more dynamic and complex approaches that take into account interactions between different practices, policy fields, audiences, and broader social structures (Jönsson & Uhlin, 2022).

This paper draws on three aspects of this research. First, it assumes a close interaction and entanglement between legitimation and delegitimation and how they shape each other (Bäckstrand & Söderbaum, 2018, p. 102). For example, a GGI that has its authority tested will respond with attempts to self-legitimize that might mitigate delegitimation (Jönsson & Uhlin, 2022, pp. 263–265). The deliberations in the UN Treaty Process present a vivid example of these entanglements.

A second aspect is the variety of relevant actors, not only as audiences, but also as agents of (de)legitimation (Bexell et al., 2022b; Gregoratti & Uhlin, 2018). Extending the classic focus on member states and bureaucratic staff as the main actors of self-legitimation, studies have begun to consider a variety of other actors (Anderl, 2024; Bäckstrand & Söderbaum, 2018, p. 102; Bernstein, 2011; Zaum, 2016, p. 1116) that can simultaneously be agents and audiences of (de)legitimation. This aspect is also evident in the UN Treaty Process, where the agents and audiences of (de)legitimation overlap and multiply in two ways: the deliberations address participating agents as well as external public audiences, and (de)legitimation practices are not confined to OEIWG members; non-state actors employ them as well.

Third, these (de)legitimation studies apply practice theory (Adler-Nissen & Pouliot, 2014; Büger & Gadinger, 2018; Kustermans, 2016) by integrating a variety of practices that may result in (de)legitimation. The majority of (de)legitimation practices manifest through language, in oral and written forms of communication, deliberation, and contestation, referred to as discursive (de)legitimation (Bäckstrand & Söderbaum, 2018; Bexell et al., 2022a; Jönsson & Uhlin, 2022). Institutional (de)legitimation practices (Bexell et al., 2022a, p. 31) include GGIs’ institutional and administrative reforms that respond to contestation, such as transparency initiatives or consultation forums. Audiences employ institutional delegitimation practices such as withdrawing consent, suspending membership fees, or exiting the institution (Bäckstrand & Söderbaum, 2018, p. 110ff.; Zaum, 2013). Behavioral (de)legitimation is a residual category for practices other than speech acts. It ‘covers a range of other actions which affect audiences’ perceptions […], such as protest demonstrations, opinion polls, ranking exercises, and performance reviews’ (Bäckstrand & Söderbaum, 2018, p. 107).

This paper focuses on discursive practices, i.e. speech acts and their meanings, for two reasons. First, such practices are most easily identified in documents and interviews. Second, recent studies confirm that they are the most prevalent means of (de)legitimizing GGIs (Jönsson & Uhlin, 2022, p. 272). This focus still connects to practice theory approaches as it understands speech acts as drawing on and producing meaning by taking place in particular organized social contexts (Adler & Pouliot, 2011, p. 5) in which ‘doings and sayings’ closely interact (Schatzki, 2012, p. 14).

3. Performance and performativity

This paper expands the focus of IR (de)legitimation studies by differentiating between legitimacy-oriented (de)legitimation staging reality and substance-oriented (de)legitimation constructing reality. This distinction parallels that between performance and performativity. While the two can overlap (Juergensmeyer, 2013; Leander, 2011), this paper draws on their differences to clarify the concepts of performing (de)legitimation as legitimacy-oriented, based on an audience-oriented understanding of performance, and performative (de)legitimation as substance-oriented, based on the reality-constructing notion of performativity.

According to the IR literature, performance denotes a practice that is staged to achieve a certain aim (Juergensmeyer, 2013, p. 281). Something is performed in order to appeal to a targeted audience or the general public. Actors play roles and follow scripts as if they were on stage in a theatre: they perform for an audience (Ringmar, 2016). The devices used on stage include a variety of practices such as language, gestures, symbols (Ding, 2020, p. 32), bodies (Ringmar, 2016, p. 102), symbolic, dramatic, and theatrical acts (Juergensmeyer, 2013, p. 281), texts and their unwritten gaps (Leander, 2011, p. 304), as well as the power to mobilize resources, people and networks and to create ‘skepticism about the adversary’s narratives’ (Adler, 2010, p. 204). This also resonates with the link between legitimation and delegitimation.

The IR literature discusses performativity as construction, denoting discursive acts that construct reality. This understanding draws on the philosophy of language that describes a close association between language and social action (Austin, 1962; Searle, 1995). According to this view (that augurs practice theory, also cf. Neumann, 2002), performative acts are speech acts that construct a social reality. They differ from descriptive language or reports as well as from claims of truth or falseness. Saying something can produce a certain reality, as Austin (1962, p. 6) explains: ‘When I say, before the registrar or altar, &c., “I do”, I am not reporting on a marriage: I am indulging in it’. Performative practices also include ‘claims, representations, assumptions and routines’ (Grzybowski & Koskenniemi, 2015, p. 29) and practices that represent shared knowledge (Adler-Nissen & Pouliot, 2014, p. 890).

In a nutshell, performance and performativity stage and construct norms, beliefs, standards, or contexts, respectively. Performance follows a script to appeal to (or alter) an audience’s beliefs, and performativity creates (new) substance in meanings (Ringmar, 2016, p. 102) and ‘standards of normality’ (Weber, 1998, p. 81). On this basis, this paper conceptualizes performing (de)legitimation as practices oriented toward legitimation and audiences, and performative (de)legitimation as substance-oriented practices.

Performing (de)legitimation is primarily intentional and strategic. It targets the beliefs of an audience. Transparency initiatives are a common example of performing – or what Zürn (2018, p. 99) calls symbolic – legitimation. These primarily seek to convince an audience of their legitimacy and thus may be rather superficial, concerned with form (appearance) rather than function (substance) (Bäckstrand & Söderbaum, 2018, p. 111; Zürn, 2018, p. 99; Gregoratti & Uhlin, 2022, p. 98). Performing (de)legitimation as the classic object of legitimation studies involves ‘strategically using certain language, gestures, and symbols to influence the impressions others form of them. These ‘front stage’ acts may differ from behavior on the ‘back stage,’ where actors do not face an audience’ (Ding, 2020, p. 529). In other words, ‘although the actors (X and Y) interact with one another on stage, their real targets are the audiences’ (Wajner, 2019, p. 1036). At the same time, they may initiate change and can have substance-related effects as a by-product (Tallberg et al., 2013). But since they primarily seek to appeal to an audience’s shared norms (such as transparency), they are more concerned with (self-)justification (Bexell et al., 2022a) than with the substantive promises and perils of transparency. They focus on a GGI’s legitimacy in the eyes of an audience: they act for an audience.

Performative (de)legitimation practices, by contrast, primarily deal with the substance of a matter and thus have the potential to co-constitute reality; they do not address audiences in a strategically targeted way like performances do. As Juergensmeyer (2013, p. 281) explains, performativity is not just a ‘tactic to achieve a tangible goal,’ but manifests ‘an element of an imagined reality.’ Yet such practices do take place in front of audiences – which, in the case of GGI deliberations, typically include experts and decision-makers as well as a broader public. By dealing with a matter substantively and imagining new realities before an audience, performative (de)legitimation practices may create new realities, identities, power relations, and normality (Dellmuth et al., 2019; Krahmann, 2017, pp. 54–57). Such practices thus differ from speech acts that embody descriptions, reports, and claims of truth or falseness, as well as from ostentatious claims to legitimacy. For example, actors substantively dealing with a GGI’s transparency might ask exactly which forms of transparency an institution can implement, to what end, how it can reconcile the potential pitfalls, and how transparency may affect other norms. They are less concerned with justifying a GGI or describing a given state of affairs. Rather, performative (de)legitimation practices aim to substantively deal with the challenges, implications, effects, and forms of certain norm dimensions, even when doing so does not appeal to audiences and contexts. While such practices can affect an audience’s perception and contribute to (or contest) a GGI’s legitimacy as a by-product, they act primarily for the substance.

Based on the above discussion, this paper suggests three distinguishing criteria between performing and performative (de)legitimation: the orientation toward legitimacy or substance, the focus on form or function, and a justificatory or substantive manifestation. The rest of this section discusses each in turn.

3.1. Legitimacy vs. substance

The first distinguishing criterion is the orientation toward legitimacy vs. substance. Performing (de)legitimation primarily aims to produce or contest legitimacy, but it can also generate other outcomes as a by-product. By contrast, performative (de)legitimation produces substance; it may also generate or contest legitimacy as a by-product. Therefore, the distinction is not about the absolute presence or absence of (de)legitimation, but its relative weight. This criterion raises the question of intent. Legitimation studies usually define legitimation practices as strategies, i.e. ‘goal-oriented activities employed to establish and maintain a reliable basis of diffuse support’ (Gronau & Schmidtke, 2016, p. 540), used to affect or manipulate an audience’s beliefs (Lenz & Söderbaum, 2023, p. 907). (De)legitimation targets certain aims – particularly GGIs’ self-legitimation (von Billerbeck, 2020; Dingwerth et al., 2019b; Sommerer et al., 2022). Few approaches aim to broaden the understanding of (de)legitimation as goal-oriented, intention-based strategies (Bäckstrand & Söderbaum, 2018, p. 104). They claim to disregard intent, because ‘what matters for legitimacy are actions that publicly express consent irrespective of the goals and intentions of the actor’ (Bexell et al., 2022a, pp. 30–31). However, these approaches also study ‘targeted audiences refer[ring] to those groups and institutions that an agent of (de)legitimation intentionally addresses in its (de)legitimation practices,’ even though unintended audiences might also be affected (Bexell et al., 2022a, p. 37, my emphasis). This is what makes studying these practices so rewarding from a legitimation studies perspective: they provide a ‘better understanding of when, how, and why [GGIs] gain, sustain, and lose legitimacy in world politics’ (Tallberg & Zürn, 2019, p. 581). Accordingly, legitimation studies highlight (self-)justification and rationalization as the primary mechanisms of discursive (de)legitimation (Bäckstrand & Söderbaum, 2018, p. 108).

Similarly, institutional performative (de)legitimation is about ‘signaling to important and powerful audiences to encourage their continued material and political support’ (Bäckstrand & Söderbaum, 2018, p. 110, emphasis added; Zaum, 2016, p. 1108). Even the distinction between symbolic and substantial legitimation (Gregoratti & Uhlin, 2022, p. 98; Zürn, 2018, p. 99) that refers to superficial vs. real change, respectively, emphasizes the role of intent in both, as both seek to address delegitimation or protesters’ concerns in order to enhance legitimacy. These practices have in common that (de)legitimation responds to (or fuels) contestation or crisis, in order to restore (or undermine) legitimacy. In sum, even when legitimacy-oriented practices also aim at something else, they always (intentionally) endeavour to produce or contest legitimacy by targeting an audience’s belief.

Performative (de)legitimation, in contrast, also contributes to legitimacy beliefs, but primarily deals with a matter or challenge at hand. Such a challenge may, but does not have to comprise of contestation or crisis. Actors that practice this type of (de)legitimation may be aware of their audiences, and even how their practices affect legitimacy, but affecting audiences or legitimacy is not their primary objective. Rather, they are interested in substantively exploring a problem, matter, or its solutions.

3.2. Form vs. function

A second and closely related criterion to distinguish between performing and performative (de)legitimation is whether they concentrate on form or function. The concept of performative (de)legitimation emphasizes the constitutive effects of practices on reality. Of course, legitimacy-oriented practices also influence reality: they generate (or contest) legitimacy, and may even affect the substance of the matter at hand. Adler and Pouliot (2011, p. 4) coined the term ‘competent performances’ to emphasize that practices produce meaning. Following (de)legitimation theories, this paper maintains that this notion applies to both the production of substance (performative) and legitimacy (performing). However, the more frequently studied performing (de)legitimizing practices ‘prioritize form over function’ (Zaum, 2016, p. 1125). This is because they aspire to correspond to (or affect) a certain set of norms in a given context (Ringmar, 2016, p. 116), ‘constrained by the script and the consistency requirement of their roles’ (Schimmelfennig, 2002, p. 417).

By contrast, performative (de)legitimation practices prioritize function over form, so to speak. They deal with the substance of a matter of interest, often from an expert point of view (however such expertise may be defined), which gives them more room to abstain from given norms and scripts. Dealing with substance rather than intended effects on audiences, as Leander (2011, p. 304) explains, they can ‘mix scripts (for example one about rights or efficiency) and perhaps even abandon them altogether […]. This (partial) delinking of the script from the context makes it far more malleable and open to revisions and change. The script loses (some) of its fixed and unitary character.’ As a result, performative (de)legitimation transforms and constructs norms and contexts (Juergensmeyer, 2013, p. 284; also Adler-Nissen & Pouliot, 2014, p. 891). Again, this criterion is not about dichotomously uncoupling the two sets of practices, but tracing their relative emphasis.

3.3. Justificatory vs. substantive manifestation

Performing and performative (de)legitimation also differ with regards to their empirical manifestation. A central mechanism of performing (de)legitimation practices is justification, as legitimation studies point out (Bexell et al., 2022a, pp. 33–35; Stephen & Zürn, 2019, p. 22). Justification acts as the transmission belt between (de)legitimizing practices and audiences, allowing (de)legitimation to resonate with the audience’s shared norms (Bexell et al., 2022a, p. 33). This is because GGIs are normatively expected to serve public interests (Mende, 2023a), i.e. to carry out tasks that do not one-sidedly privilege private, personal, or profit interests (Golia & Peters, 2022, p. 28; Steffek, 2021). Accordingly, (de)legitimation practices aim to demonstrate (or contest) a GGI’s contribution to public interests. This is why Hurd (2019) criticizes legitimation studies for analyzing how GGIs can appear to do so, rather than studying whether or not they substantively do.

By contrast, performative (de)legitimation comes in substantive rather than justificatory forms, which may include cumbersome (rather than pleasing), complicated (rather than easy), or indirect (rather than straightforward) manifestations. Instead of appealing to an audience’s norms, performative (de)legitimation may be guided by other (e.g. the actors’ own) normative yardsticks according to which they seek to provide solutions. How exactly performative (de)legitimation manifests is a matter for empirical analysis that the remainder of the paper will assess.

4. (De)legitimation in the UN treaty process on business and human rights

To illustrate the concepts of performing and performative (de)legitimation, this paper examines a case study of what has come to be called the UN Treaty Process – the most recent and globally most encompassing deliberations about an internationally binding regulation with regard to business responsibilities for human rights. These deliberations take place in the OEIWG, an open-ended UN working group with the mandate to draft a treaty, and are accompanied by fierce discussions among a variety of state and non-state stakeholders. Deliberations in and alongside the OEIWG are marked by discursive practices that aim to either legitimize the Treaty Process by supporting the OEIWG (proponents), or delegitimize the process by contesting the OEIWG or its aims (opponents). The concept of performing legitimation lends itself well to analysing these legitimacy-oriented practices. However, not all practices in the deliberations neatly fit into this category. Some practices employ language that is not tailored to attracting an audience and might even appear detrimental to an audience’s perception. Instead, they substantively deal with questions at hand. This paper explains these practices using the concept of performative (de)legitimation.

The case study focuses on discursive practices (speech acts), i.e. oral and written communicative (de)legitimation practices, due to their central role and ubiquity in both performing and performative (de)legitimation. The study draws on an extended qualitative content analysis (EQCA, Mende, 2022b) of the deliberations in (and about) the OEIWG.¹ EQCA is an interpretive approach that integrates descriptive and explorative aspects of qualitative content analysis with steps from grounded theory that engage with the codes and sub-codes in an interpretive and explanatory manner (axial coding). I supplement the document analysis with 20 expert interviews of various stakeholders to address the gaps, contradictions, and questions raised by the document analysis.² The study also draws on field visits to the UN and other GGIs and civil society actors in Geneva, as well as a participant observation of the OEIWG’s 2016 session and the UN Forum on Business and Human Rights’ annual meeting in 2019.

I connected the documents and interviews with variables that identify their position on the treaty. This allowed me to scrutinize the data and categorize most of it as reflecting the position of either a proponent or opponent. I classified some speech acts that do not fit into this categorization as unclear. Performative (de)legitimation provides a possible explanation for these ambiguous documents.

In the course of the analysis, complexity inductively emerged as a vital explanatory category that I then analyzed in further rounds of axial coding. The following analysis focuses on this category, as it fleshes out the distinction between performative and performing (de)legitimation. In the deliberations, complexity occurs in two forms. First, it appears in a justificatory manner to legitimize or delegitimize the Treaty Process; in this case, complexity is used intentionally to achieve the aim of (de)legitimation (performing practices). Second, complexity is also dealt with in a substance-related manner. These latter practices do not use complexity in a strategic or justificatory way to (de)legitimize the Treaty Process; rather, they engage with complexity – and thus create ways to deal with it. Establishing that it is possible to handle complexity by doing so (instead of, say, resigning because of it) demonstrates agency and capability. This also can affect the legitimacy of the Treaty Process as a by-product – hence it represents performative (de)legitimation.

This section briefly introduces the Treaty Process (4.1) and then discusses complexity in its two forms: as a justificatory point of reference captured by performing (de)legitimation (4.2) and as a substance-related practice representing performative (de)legitimation (4.3), demonstrating the double-edged role of complexity for (de)legitimation (4.4).

4.1. The UN Treaty Process

The UN Treaty Process on business and human rights represents a growing awareness of how business activities impact human rights. It underscores the power and agency of non-state actors in global governance as well as the governance gaps in state responsibility, both of which highlight the need for new regulations to strengthen human rights vis-à-vis business activities (Černič & Carrillo Santarelli, 2018; Deva & Bilchitz, 2017; Mende, 2023a). The Treaty Process takes place in the OEIWG, which the UN Human Rights Council created in 2014 with the mandate to ‘elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’ (HRC, 2014). The annual OEIWG sessions include states, representatives of other international organizations, and non-state actors with accreditation. Other actors, including individuals, experts and law firms, can also make written and oral submissions. The OEIWG chair is responsible for leading the annual sessions, preparing the programmes of work, and drafting the treaty versions. The Office of the UN High Commissioner for Human Rights helps organize the OEIWG sessions by serving as a secretariat. The OEIWG will report its final results to the Human Rights Council, which will then decide how to proceed once a draft treaty is finalized.

The OEIWG’s aims contrast with those of other current (non-binding) global business and human rights norms and regulations. Powerful actors contest its legitimacy, arguing that it endangers the business and human rights regime as represented by the legally non-binding UN Guiding Principles on Business and Human Rights (cf. Mende, 2022a). Given the highly contested background of the Treaty Process, it provides a strong case of (de)legitimation practices in GGIs.

4.2. Complexity as performing (de)legitimation

Complexity in its (de)legitimizing function serves as a justificatory point of reference, either by depicting the Treaty Process as unable to handle the challenges caused by complexity or by expecting the Treaty Process to do exactly that. These justifications can largely be captured by coding documents for arguments and justifications that overtly and explicitly refer to complexity. A closer analysis of two topics that are framed as highly complex in the deliberations also traces implicit references to complexity as a justificatory point of reference.

The first is the scope of companies to be addressed in a future treaty, culminating in the question of whether to include all companies or to differentiate between transnational and other companies. This is one of the key contested issues in the Treaty Process (Mende, 2022a). Initially (from 2014 to 2018),³ the Treaty Process intended to address only transnational companies or those that engaged in transnational activities. Thus, contesting stakeholders (including the European Union) feared that only companies’ transnational headquarters would be held responsible for their human rights impact, and not local branches, state-owned enterprises in the Global South, or enterprises at the lower ends of supply chains.

What is striking in terms of (de)legitimation is that complexity serves as a point of reference for both proponents and opponents of the Treaty Process. For the former, the complexity of transnational companies constitutes a reason for the transnational scope of the process, as it accounts for the gaps in global governance regarding transnational companies. As a civil society organization explains, ‘We all know that transnational corporations are present in many territories and use their complex structure to evade responsibility’ (Corporate Accountability International 2019, Articles 10–12: 1, also South Africa Statement Panel II, 2015: 2).⁴

Opponents of the Treaty Process also acknowledge the complexity of transnational companies, but use it to justify the lack of regulation: ‘It would also be extremely difficult, if not impossible, to monitor the vast array of activities that have a “transnational character”’ (BIAC et al._written contribution, 2017: 4).

The second topic is the complexity of global supply and value chains. In addition to formal, hierarchical relationships with subsidiaries, these chains feature loose (or even informal) ties with suppliers, contractors, subcontractors, licensees or franchisees within and beyond national and regional borders (Barrientos et al., 2011). In attempts to legitimize the Treaty Process, proponents cite the complexity of supply and value chains to justify the need for a binding instrument (David Bilchitz_Panel V (Art.3;4), 2018: 2). They argue that because companies are apparently able to deal with supply chain complexity in their business relations, they should also be able to address related human rights concerns.

We should have a company find a solution to the complexity. Because companies do have technical solutions to the complexity of their production and fabrication processes, otherwise they would not be able to handle 40,000 suppliers and subcontractors. They handle that complexity quite well, both economically and technically. So now they have to handle it from a social and public interest point of view as well. (INT 20/Human Rights Organisation/July 2020, Pos. 24)

Opponents refer to the same complexity to argue the opposite – that supply and value chains are too complex to implement binding regulation (BIAC et al._written contribution, 2017: 4). Opponents thus neither ignore nor deny complexity. Instead, they reverse the argument: for them, complexity is the very reason why the treaty cannot succeed, which is how they aim to delegitimize the Treaty Process.

No, I don’t think that [the treaty] is possible. I think the matters are so complex that they cannot be elaborated and juridified, because the situations are too different, even for one company operating in different contexts. (INT 6/Business/May 2019, Pos. 51)

The crux of the problem is that the category of business and human rights […] includes complex clusters of different bodies of national and international law […]. The point is not that these are unrelated, but that they embody such extensive problem diversity, institutional variations, and conflicting interests across and within states that any attempt to aggregate them into a general business and human rights treaty would have to be pitched at such a high level of abstraction that it is hard to imagine it providing a basis for meaningful legal action. (John G. Ruggie_ Statement May 2014: 1)

4.3. Complexity as performative (de)legitimation

Complexity is not only a justificatory point of reference; proponents and opponents agree that it also generates substantive challenges for the Treaty Process. Their respective justificatory references to complexity even mention these challenges. However, there is a difference between using complexity as justification for (de)legitimation and dealing with the challenges it creates. The latter are discursive practices that differ from the clear statements legitimizing or delegitimizing the Treaty Process. These speech acts are instead dedicated to a detailed, differentiated, and often demanding analysis of the treaty drafts’ language, scope, and issue areas. They even contain inconclusive statements about the OEIWG’s legitimacy, thereby potentially undermining legitimacy-oriented practices. However, they address complexity in a substance-related manner by engaging with the challenges it poses, thus performatively dealing with the issue and enacting its possible solutions. The following illustrates the complexity of the treaty’s transnational scope:⁵

Aside from the merits, the geo-economic and diplomatic stakes are sensitive. Europe understandably does not want a treaty that would regulate its large companies – nearly all of which are TNCs – while giving a free pass to other nation’s local companies (which may compete with European TNCs in their national markets). Nor does Europe want to give Pakistan (and others) a green light to impose strict treaty regulations on European companies, free of any worry about the regulatory impact on Pakistani companies. […] If the treaty process is to be credible, a compromise – and willingness to compromise – is needed. Fortunately, reasonable middle grounds can be proposed. For example, potential treaty requirements that companies publicly report on their human rights performance, and engage in extensive human rights due diligence, could be applied only to companies above a certain size (as in the case of recent EU regulations and pending French legislation). A treaty taking that approach would in effect cover only TNCs, since any company above a certain size is likely to do business across national borders. But it would not in principle exclude local companies. And smaller, local businesses need not be ignored. They could be covered, for example, by requiring States to adopt National Action Plans to implement the UN Guiding Principles. Each State could then determine how best to regulate its smaller companies. Domestic sovereignty over most local companies would be preserved. (Doug Cassel_Article 2015: 7)

This speech act addresses the complexity of defining (transnational) companies by taking the arguments of both proponents and opponents into account. This contrasts starkly with performing (de)legitimation by justification and by unambiguously taking sides.

Another speech act deals with the complexity of the due diligence norm:

The zero draft however misses a major opportunity in specifying how a relevant business entity can organise its operation to prevent human rights abuses. The draft wisely elevates human rights due diligence but it should also establish the ground rules for mandatory public comments on the due diligence report from those most likely to be affected and a judicially based process to reconcile the corporate-drafted due diligence statement and the views of the affected public. An internally prepared due diligence study is only one-third of the process for an effective prevention system. As with the prevention requirements, the zero draft and its associated draft protocol misses the opportunity to provide a far higher degree of clarity about mechanics of mutual assistance and cooperation; the draft provision are also only one-third of the story. The zero draft and the protocol establish an institutional structure to ask for information from authorities in other countries but omits the requirement that the receiving country act within the terms of its legal structure to provide the requested information and then to assure the implementation of any final court judgement (sic). No doubt there is a lot of good legal work necessary to define the appropriate way for one legal system to ‘talk’ effectively with another legal system. (Harris Gleckman_Article 2018: 2)

Both quoted speech acts differ from performing (de)legitimation in two important ways. First, they do not target the Treaty Process’ legitimacy, as they do not seek to convince a public audience or other stakeholders by pointing out the (dis)advantages of a treaty draft. Indeed, they are somewhat unattractive from a legitimacy perspective, given their inconclusiveness and bulkiness.

Second, they are dedicated to the draft’s content, rather than how it relates to an audience’s norms and expectations. Accordingly, they deal with the complex challenges in a substance-related rather than justificatory manner, thereby co-constructing the expertise and analysis necessary to tackle the complexity of the matters at hand.

This substance-oriented engagement with complexity can enhance the legitimacy of the Treaty Process as a by-product, because both proponents and opponents acknowledge that complexity is a challenge. The performance of dealing with complexity constitutes a way to address its challenges.

Performative (de)legitimation can also explain two types of speech acts that blur the line between Treaty proponents and opponents. The first is speech acts that do not include a normative positioning toward the OEIWG but address the complexity of business and human rights regulation without concluding whether the Treaty Process can fulfil the necessary requirements.

Second, even speech acts from opponents can legitimize the Treaty Process if (and only if) they engage substantively with the points of concern. The following example from the International Chamber of Commerce (ICC), a business representative that is principally critical of the Treaty Process, demonstrates this point:

Of the above sample of cases, jus cogens violations – genocide, crimes of war, crime against humanity, forced labor – were alleged against companies as the primary actor in only FOUR cases. The remaining 35 instances of jus cogens violations were alleged against States as the primary actor, with the company possibly complicit in some way. Thus, the vast majority of allegations in which companies are the primary actors involve a whole array of other rights violations, but not grave violations of human rights, even if they are still certainly impactful for the victims. […] This means that States are peers – they should not sit in judgment of another. We see the tension in this precept play out in this very room several times a year. The second principle means that States should be able to control what goes on in their own territories. […] we are unfortunately now also witnessing a backlash against universal jurisdiction in even the clearest examples where it is needed – for criminal claims in international forum. (ICC_Panel II (2) 2016: 1–2)

Although the ICC opposes the Treaty Process, it provides substance-related points that facilitate developing a future treaty – by dealing with the challenges at hand. Thus opponents may (even unwillingly) contribute to performative legitimation.

4.4. The double-edged role of complexity

The analysis reveals two types of (de)legitimation practices tied to complexity. The first entails the justificatory usage of complexity clearly designed to either legitimize or delegitimize the Treaty Process. Opponents argue that binding regulation is too complex to achieve, thereby delegitimizing the aim of the Treaty Process. This approach is conspicuously similar to what Anderl (2024, p. 78) calls ‘arguing with complexity,’ which is ‘a rhetorical tactic that can be observed in the “quest for legitimacy” of IOs.’ This tactic maintains that a situation cannot be dealt with in greater depth as it is too complex. In this rhetoric, complexity serves as a ‘factual constraint’ (Anderl, 2024). In addition to these delegitimizing practices, proponents use complexity to legitimize the Treaty Process, arguing that (only) it is able to tackle the gaps in the business and human rights regime.

In contrast to these legitimacy-oriented practices, performative practices involve substantively engaging with the challenges of complexity. This may produce (de)legitimation as a by-product. At the same time, they put a twist on the binary of legitimation and delegitimation. Even a highly contestatory approach to addressing complexity may have legitimizing effects if it constitutes a substantive engagement. Vice versa, even dealing with complexity in a well-intended manner may undermine legitimacy because, as von Billerbeck (2020, p. 215) notes, ‘narratives in IOs must be plausible and immune to refutation much more than they must accurately capture complexity, nuance, or ambiguity; in fact, they should do just the opposite: they should provide a simplifying account’ for their legitimation. Performative practices can thus also undermine a GGI’s legitimacy. Engaging with complexity may fail to generate possible solutions. Therefore, the outcome with regard to legitimacy is not predetermined.

The case study also illustrates a further conceptual refinement of performative (de)legitimation. On the one hand, performative differs from performing (de)legitimation and its manifestations such as justification, rationalization, or claims to truth or falseness. Complexity is dealt with rather than used for a further end. On the other hand, performative (de)legitimation also differs from other speech acts such as pure description, cautious diplomacy, or practices that demonstrate uncertainty or neutrality for other reasons; all of these speech acts may address complexity, but do not deal with it. In other cases, speech acts may produce substance but do not affect legitimacy. For example, some UN Treaty Process meetings contain sessions dedicated to discussing the articles of the drafts in detail. These speech acts were disregarded in the above analysis because they represent a usual, rather technocratic part of the process of developing an international treaty (Barrett & Beckman, 2020, pp. 158–202) and because these sessions were devoid of (de)legitimation practices. By contrast, performative (de)legitimizing practices occurred in contexts marked by general comments or clear endeavours to (de)legitimize the Treaty Process in the eyes of an audience.

5. Conclusion

This paper extends the study of legitimacy-oriented practices in GGIs by studying substance-oriented practices, introducing the concept of performative (de)legitimation. This concept allows us to categorize legitimacy-oriented practices as performing (de)legitimation, in turn. The paper develops performative and performing (de)legitimation based on IR studies of legitimacy, performance and performativity, and substantiates the concepts empirically based on a qualitative case study of the UN Treaty Process on business and human rights. The inductively derived category of complexity demonstrates the difference between performing a practice and a performative practice. The former employs complexity as a justificatory point of reference: it stages complexity, focusing on form in an attempt to strengthen or contest legitimacy from an audience’s perspective. The latter deals with the substantive challenges generated by complexity, thereby constructing its potential solutions. It focuses on function as a substance-related matter and contributes new ways of thinking about complex problems, thereby affecting the legitimacy of the Treaty Process as a by-product. The case study illustrates how performing and performative (de)legitimation differ from each other in three regards: the orientation toward legitimacy or substance, the focus on form or function, and the justificatory or substantive manifestation.

The case study highlights two further clarifications in the study of performing and performative (de)legitimation. The first concerns the question of empirically distinguishing between performative and performing (de)legitimation practices. As laid out above, empirical studies of performing (de)legitimation primarily identify speech acts of justification and rationalization (Bexell et al., 2022a, pp. 33–36; Jönsson & Uhlin, 2022, p. 265) as empirical manifestations. Performative (de)legitimation, by contrast, may not feature such clear markers. While it may be marked by bulky, complicated or pondering speech acts, not all such speech acts qualify as performative (de)legitimation. Studying this concept therefore requires interpretively engaging with the meanings and contexts of practices. This is possible because speech acts and other practices are ‘social products’ that reflect their author’s interests, positions, and values (Hammersley & Atkinson, 2007, p. 130), containing both intended and unintended meanings (Hitchcock & Hughes, 1995, p. 231). Thorough interpretive qualitative analysis can investigate these meanings by tracing explanations, reasons, connections, gaps, social causality, and patterns of argumentation (Mende, 2022b). To a certain degree, stakeholders’ intentions can be traced in documents; they can be gleaned from interviews and field studies as well as from experience in the issue area. While these methods do not completely open up the black box of intent, they provide much more insight into practices than simply flagging statements with positive or negative variables that mark the overt aim to (de)legitimize a GGI. This underlines the added value of interpretive analysis, which generates insights from outliers and demonstrates the relevance of single-case studies in the global governance literature as a complement to comparative and large-n studies (Yanow & Schwartz-Shea, 2006).

The second clarification is that the concepts of performing and performative (de)legitimation should not be misconstrued as a binary distinction between substance-related expertise on the one hand and the justificatory appeal to given interests on the other. Rather, the case study illustrates that both sets of practices entail both elements. The justificatory references to complexity in performing (de)legitimation are not solely strategic; they also contain substance-related elements and genuine challenges. Nevertheless, the justificatory usage of complexity primarily seeks to (de)legitimize the Treaty Process. Vice versa, performative practices are not devoid of strategic interests and the goal of (de)legitimation. On the contrary: engagement with complexity is not dichotomously detached from political, interest-based, and/or normative assumptions, and expertise is not neutral (Mende, 2023b; Steffek, 2021). Rather, the dedication to substantively addressing complexity (while drawing on norms, interests etc.) stands out instead of appealing to a certain set of norms that are designed to appeal to a particular audience. In short, the distinction between performing and performative (de)legitimation is not dichotomous and mutually exclusive; what counts is the main emphasis and manifestation of each.

Future research can further explore performative (de)legitimation practices in at least three ways. First, in this paper I have inductively developed the category of complexity in order to illustrate how performative and performing (de)legitimation practices manifest. Future studies could explore other categories to provide further insights. At the same time, dealing substantively with a matter at hand will more often necessitate engaging with complexity rather than relying on easy exits. Thus complexity, although it represents only one example, might turn out to be an ever-present mechanism of how performative (de)legitimation manifests.

Second, both sets of practices may fail: they share the difference between (de)legitimation practices potentially affecting legitimacy, on the one hand, and legitimacy as a GGI’s property, on the other. Future studies can examine how the practices affect GGIs’ actual legitimacy from the perspective of multiple audiences.

Third, this paper focuses on discursive practices, i.e. oral and written speech acts. Yet legitimation studies of GGIs as well as practice–theory informed performance/performativity discussions indicate that institutional and behavioural (de)legitimation practices can also come in the form of legitimacy-oriented (performing) and substance-oriented (performative) practices. Future research can thus further elaborate on the manifestations of performative (de)legitimation in institutional and behavioural practices.

Ultimately, the concept of performative (de)legitimation captures practices that do not primarily seek to but nevertheless do affect GGIs’ legitimacy by engaging with substance and thereby co-constituting norms, beliefs, and contexts. It also provides an explanation for unclear or mixed speech acts in global governance deliberations. It explains inconclusive or bulky statements, and even elucidates commentaries from actors that otherwise reject a GGI but provide such a detailed and dedicated examination of how to reconcile its challenges that they may unwittingly help legitimize it. Finally, the concept also reconciles the criticism that legitimacy studies disregard substance. While it acknowledges that performing (de)legitimation also can generate substantive effects, it highlights practices that deal with substantive challenges – thereby co-constituting realities and norms, rather than staging and therefore reproducing certain norms in global governance. However, this is not to say that given global governance norms are always ‘bad,’ and altering them is always ‘good.’ Rather, such an evaluation again depends on the substance of the norms – and the substantive engagement with them.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Deutsche Forschungsgemeinschaft [grant number 398306144]; Max-Planck-Gesellschaft [Research Group MAGGI].

Notes on contributors

Janne Mende

Janne Mende is Senior Research Group Leader at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, where she investigates the governance authority of public and private actors in the United Nations and the European Union. Additionally, she heads research projects dedicated to business and human rights. She has held a position as deputy professor for Transnational Governance at the Technical University of Darmstadt and visiting positions at the WZB – Berlin Social Science Center Research Unit Global Governance, the Graduate Institute of International and Development Studies in Geneva, the New School for Social Research in New York, and the School of Global Studies in Gothenburg, among others. Her research interests include global norms, global governance, human rights, and international institutions.

Notes

1 The corpus of analyzed documents contains approximately 1,000 statements by state, inter-state and non-state actors that were submitted to the OEIWG’s annual sessions between 2015 and 2019, as well as supplementary external commentaries on the OEIWG during the period 2013–2018. The list of documents is available in the binding treaty on business and human rights dataset (doi.org/10.7910/DVN/XK3JX6 ). The following discussion is illustrated with representative quotes from these documents, labeled with the title of the document as published by the OEIWG (usually stating the author), the year of the document, and the page number of the quote.

2 The expert interviews were conducted between April 2019 and July 2020. The interviewees were guaranteed full anonymity, which is why the interviews are labeled with consecutive numbers, followed by the type of actor, interview date, and position of the quote. Direct quotes were gently linguistically polished, and translated when necessary.

3 Since 2019, the OEIWG has taken all enterprises into account in its drafts, while still emphasizing a focus on transnational business activities.

4 Stakeholders in favor of a treaty that includes all (not only transnational) companies also acknowledge the complexity of transnational companies, but add the need to cover governance gaps with regard to other companies as well (ESCR_written contribution 2017: 12, INT 20/Human Rights Organisation/July 2020).

5 To demonstrate how speech acts deal with complexity, the presented quotes are longer than usual.