This paper explores the question of how MSH organizations establish and affirm their legitimacy as a form of governance. It concludes that in some cases, the legitimacy of a MSH organization will rest on the simple proposition that the organization operates with the consent of the entities whose behavior it regulates: “The consent of those who choose to be governed.” In other cases, however, an MSH process may involve decisions regarding third parties – individuals or entities who are not members of or participants in the MSH organization. These individuals or entities will have neither consented to have matters of importance to them adjudicated through a MSH process nor had a say in establishing the standards or procedures according to which their behavior will be judged. In these cases, legitimacy becomes a much more complex question. The most serious legitimacy concerns arise when MSH-based actions regarding third parties have the potential to directly impact or limit the fundamental rights of individuals.
The question of legitimacy is an important one, and we raise it not in the interest of challenging the MSH model but rather with the goals of finding ways to address concerns that have long been raised about MSH governance and encouraging discussion about how to strengthen the legitimacy of existing and proposed MSH organizations. What kinds of policies can MSH organizations adopt to better make a case for their own legitimacy? How does the involvement of government affect the legitimacy of a MSH process? And are there some types of functions that, because of their impact on users’ fundamental rights, the MSH governance model is simply not well-suited to adopt?