The Fiduciary Character of Sovereignty
In his classic treatise on the law of nations, the eminent Swiss jurist Emerich de Vattel asserted that "sovereign authority” is "established only for the common good of all citizens.” Therefore, any monarch who claimed sovereign privileges:
ought to have his mind impressed with this great truth, that the sovereign power is solely intrusted to him for the safety of the state, and the happiness of the people; that he is not permitted to consider himself as the principal object in the administration of affairs, to seek his own satisfaction, or his private advantage; but that he ought to direct all his views, all his steps, to the greatest advantage of the state and people who have submitted to him.
Having framed sovereignty as an entrusted power, Vattel reasoned that the law of nations would not permit a monarch to treat the idea of sovereignty as a license to oppress his own people. "When a sovereign does injury to any one” of his subjects, Vattel suggested, he "acts without real authority” and, "having lost all the sentiments of a sovereign, ... no longer retains the prerogatives attached to that exalted rank.” Thus, a monarch's sovereign "right is derived from duty”—a legal obligation to exercise public powers solely for and on behalf of the people as a whole.
Nearly three-and-a-half centuries later, in a very different context, U.N. Secretary-General Kofi Annan invoked a similar theory of sovereignty in his 1999 Annual Address to the U.N. General Assembly. Citing humanitarian tragedies in Kosovo and East Timor, the Secretary-General asserted that the international community shared responsibility with states to safeguard humanity from mass violence and oppression, and he linked these “new responsibilities” to a relational conception of sovereignty under international law:
State sovereignty, in its most basic sense, is being redefined—not least by the forces of globalisation and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa.
At the same time individual sovereignty—by which I mean the fundamental freedom of each individual, enshrined in the charter of the UN and subsequent international treaties—has been enhanced by a renewed and spreading consciousness of individual rights. When we read the charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.
Although these two reflections on the character of sovereignty represent distinct epochs in the history of international law, they offer strikingly similar accounts of international legal order. Both Vattel and Annan suggest that public powers are entrusted to states for the benefit of their people. Under both accounts, states forfeit their authority to rule if they abandon the public-regarding “sentiments of a sovereign” by disregarding their fiduciary obligations to their people. These complementary visions of states as agents or trustees for their people distinguish Vattel and Annan as participants in a republican tradition that dates back to antiquity.
This book takes up the idea that states serve as fiduciaries for their people and, collectively, for humanity at large. Indeed, we shall see that in many contexts states are fiduciaries of humanity generally, as well as discrete agents of the people within their territorial jurisdiction. As fiduciaries of humanity, states owe various context- specific duties to foreign nationals, including, in some cases, extraterritorial foreign nationals. Likewise, international institutions are also, we argue, fiduciaries of humanity. International institutions sometimes engage in a form of direct fiduciary governance akin to the fiduciary relationship between a sovereign state and its people, as occurred in Kosovo and East Timor. more generally, international institutions act as indirect fiduciaries by delegating public powers to states, monitoring state performance, and arbitrating international disputes within the framework of an international legal order that is intended to benefit humanity. The chapters in this book examine the theoretical and practical implications of these insights for public international law.
Arguably the most important of these implications is that the time has come to retire the traditional, but increasingly embattled, conception of state sovereignty as exclusive jurisdiction. In its place, we propose a new relational model that views sovereignty as emanating from a fiduciary relationship between states and the people subject to their jurisdiction. Adumbrating and defending this conception of sovereignty from the standpoint of public international law is this book's principal burden. The fiduciary model we develop is a "relational theory” in the sense that it conceptualizes state sovereignty under international law as arising from, and being defined and constrained by, features of the distinctive juridical relationship that international law constitutes between states and their people. Contemporary international law entrusts states with authority to exercise sovereign powers, but only in the name and for the benefit of the people subject to those powers (including, in some cases, foreign nationals). This idea is the criterion of legitimacy that flows from the fiduciary theory, and in subsequent chapters we shall see that it plays a central role in the assessment of the legality and scope of international law.
Fiduciary concepts have furnished a conceptual foundation of international legal relationships for centuries, from colonial encounters that sparked the emergence of international law as a discipline to the contemporary law ofoccupation. Until recently, however, the fiduciary character of state sovereignty has not received sustained attention as a normative theory of international law. This book suggests that the fiduciary model of state sovereignty merits further examination and elaboration because it offers a compelling philosophical account of contemporary international law's focus on human security and human rights as the central concerns of state sovereignty. Under the fiduciary model, sovereignty serves people rather than states. Consequently, a state's claim to exercise sovereign authority is derived from, and wholly dependent upon, the satisfaction of its relational duties to the people subject to its legal powers. At a general level, states must provide the people subject to their powers a regime of secure and equal freedom. More concretely, this means that states must treat their people always as ends rather than mere means (the Kantian principle of non-instrumentalization), and they must refrain from assuming arbitrary power over the legal and practical interests of their people (the republican principle of non-domination). We argue that these general obligations are constitutive of state sovereignty under international law.
A variety ofmore specific legal proscriptions and affirmative duties emanate from these general fiduciary obligations, including the prohibitions against genocide and torture; civil and political rights of due process, freedom of expression, freedom of religion, and legal equality; progressively implemented socioeconomic rights to food, housing, education, and health care; and obligations to provide refuge to foreign nationals fleeing persecution. The fiduciary character of a state's legal authority thus finds expression in a vast array of norms recognized under international law, ranging from the law governing recognition of emerging states and international human rights law (IHRL) to other areas such as international humanitarian law (IHL) and international refugee law (IRL). In contrast to traditional accounts of sovereignty, which posit a tension between a state's autonomy and principles of state responsibility, the emerging fiduciary model envisions a state's sovereign authority and its international legal obligations as inextricably connected. A state's sovereign authority to rule and its duty to serve the people entrusted to its care are mutually dependent features of the fiduciary constitution of sovereignty under international law.
The fiduciary model of sovereignty developed in this book is both a conceptual and normative theory of the philosophical foundations of state authority and a positive or interpretive theory of the juridical structure that already exists under international law of the relationship between the state and each person subject to its jurisdiction. The relationship between a state and its people is distinctively fiduciary because it shares constitutive features common to all fiduciary relationships, including trust, discretionary power, and vulnerability. In recognition of these features, international law regulates the distribution and exercise of sovereign powers, much as private law regulates the powers of other fiduciaries to protect the integrity of relations in which trust is reposed. Although international institutions rarely refer to fiduciary obligations when they assess state compliance with international law, they enforce states' obligations by applying legal norms that safeguard the dignity of persons subject to IHRL, as well as the status and standing of others who are subject to IHL, a status and standing that recognizes the individual as a proper subject and beneficiary of international legal order. Viewed from this perspective, we argue, the fiduciary model captures the essential normative foundations and legal structure of state sovereignty under contemporary international law. The fiduciary theory thus illuminates the implicit presuppositions of contemporary international law.
The book's methodology is a blend of inference to the best explanation and Rawls's idea of "reflective equilibrium.” In subsequent chapters we take as provisionally given core elements of different domains of international law—for example, the prohibition against torture within IHRL or the duty of non-refoulement under IRL—and show how those elements can be explained by the fiduciary theory. We infer the plausibility of the fiduciary theory from the explanation it supplies of the central precepts of multiple domains of international law. The fiduciary view is thus an interpretive theory of international law. But as noted, the fiduciary account is also a prescriptive theory, as it has conceptual and normative resources that enable a constructive critique of various aspects of international law, including pieces generally thought to lie at the core, such as the purported jus cogens or peremptory status of the prohibition against piracy. This critical appraisal occurs through a process of reflective equilibrium under which the specific particulars of international law are tested against the general requirements of the fiduciary theory, which at this stage of analysis is a theory enriched and strengthened by inclusion of the core elements of international law well-suited to a fiduciary explanation.
More concretely, we will show that the fiduciary model has normative implications that should inform efforts to strengthen international legal frameworks through the principles of non-instrumentalization and non-domination. For example, the fiduciary principle's relational conception of sovereignty aids in identifying which international norms merit induction into the canon of international "human rights,” and it clarifies the circumstances under which states, during emergencies, may derogate from their international obligations to respect human rights. Additionally, the fiduciary model offers resources for refining international law on the use of force, mediating tensions between IHRL and IHL, and refining the international norms that govern administrative detention during armed conflict and refugee crises. In these and many other respects, the fiduciary model outlines an agenda for reform that should guide international law's progressive development.
-  Emmerich de Vactel, The Law of Nations: Or Principles of the Law of NatureApplied to the Conduct and Affairs of Nations and Sovereigns 13 (1758)(transl. 1876).
-  Id.
-  Id. at 21-22.
-  Id. at lv.
-  Kofi Annan, Annual Address to the General Assembly, SG/SM/7136, Sept. 20, 1999, http://www.un.org/News/Press/docs/1999/19990920.sgsm7136.html (last visited dec. 1, 2015).
-  In previous writings, we have referred to this cosmopolitan aspect of states' fiduciary role as a formof “joint trusteeship” for the benefit of humanity. E.g., Evan Fox-decent & Ian dahlman, Sovereigntyas Trusteeship and Indigenous Peoples, 16 Theoretical Inquiries L. 507 (2015); Evan Fox-decent,From Fiduciary States to Joint Trusteeship of the Atmosphere: The Right to a Healthy Environment througha Fiduciary Prism, in Fiduciary Duty and the Atmospheric Trust 253 (Ken Coghill, CharlesSampford & Tim Smith eds., 2012); see also Eyal Benvenisti, Sovereigns as Trustees of Humanity: Onthe Accountability of States to Foreign Stakeholders, 107 Am. J. Int'l L. 295 (2013) (developing historical and theoretical grounds for viewing states as trustees ofhumanity as well as their people). Weuse the more general term “fiduciaries of humanity” in this work, however, in recognition of the factthat the juridical status and fiduciary obligations associated with statehood—although analogous totrusteeship—are not fully captured in the law of trust. The term ‘fiduciaries ofhumanity' is also capacious enough to incorporate the idea that international institutions, subnational actors, and evensome nonstate actors serve as fiduciaries ofhumanity under international law. See infra Chapter 8.
-  See Antony Anghie, Imperialism, Sovereignty, and the Making of InternationalLaw (2004) (critiquing the application of fiduciary concepts throughout the colonial era).
-  See Ralph Wilde, International Territorial Administration: How Trusteeshipand the Civilizing Mission Never Went Away 322-26 (2008) (discussing this trusteeconception); Eyal Benvenisti, The International Law of Occupation 6 (2004)(observing that an “occupant's status is conceived to be that of a trustee”); Adam Roberts, WhatIs Military Occupation?, 55 Brit. Y.B. Int'l L. 249, 259 (1984) (stating that “the idea of ‘trusteeship' is implicit in all occupation law . . . all occupants are in some vague and general sensetrustees”).
-  John Rawls, A Theory of Justice 20 (1971).