Creating Fiduciary States
In this chapter, we explore the role of international law in constructing the legal personality, jurisdiction, discretionary powers, and duties of states. We argue that international law conceives of states as fiduciaries for their people, and we explain how this conception informs the rights and duties associated with states' international legal personality.
Our emphasis on the state as the fundamental unit of global governance might strike some readers as shortsighted. Since the early 1990s, many international lawyers and political theorists have celebrated "the withering away of the state,” as political, economic, technological, and cultural forces have led to the creation of new international organizations, transnational regulatory networks, and nongovernmental organizations (NGOs). Ethnic violence in newly independent states has hastened the development of international tribunals and territorial administrations such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the U.N. Interim Administration Mission in Kosovo (UNMIK). Increasing economic interdependence has elevated critical questions of public policy to the international level to be decided by entities such as the World Trade Organization (WTO) and the World Bank. Spurred partly by an increasingly dense network of transnational human rights NGOs, the past several decades have witnessed treaty bodies such as the European Court of Human Rights (ECHR), the Inter-American Court of Human Rights (Inter-American Court), and the U.N. Committee Against Torture become more actively involved in supervising state compliance with international human rights. Many international lawyers have hailed these developments as marking a transition away from Westphalia toward a more just and cosmopolitan world order in which states play a less prominent role.
Despite these significant changes to international order, the reality is that states are unlikely to exit the global stage anytime soon. For more than four centuries, international law has divided up the earth's surface among states claiming mutually exclusive territorial jurisdiction, making states the primary units of public governance throughout the world. Indeed, in most areas of the world, states are the only institutions with the practical capacity to establish legal order. States also continue to serve as the primary participants in the progressive development and global enforcement of international law. Although the state is by no means the only institution through which international law might conceivably establish secure and equal freedom for peoples of the world, the fact remains that international law continues to rely upon states as the primary fiduciaries for humanity.
We argue that the state's durably privileged position in international law reflects the fiduciary character of its international legal personality. Much like the legal authority of agents and trustees in private law, the international legal authority of a state is grounded in a juridical relationship between the state and its beneficiaries— the people subject to its sovereign jurisdiction. Although other international institutions, such as the various organs of the United Nations, share the other-regarding and purposive characteristics of states, international law relies upon states to serve as the primary institutional vehicles for establishing secure and equal freedom for humanity. To ensure that states do not abuse this authority, international law requires states to exercise their powers in a manner that is consistent with their other-regarding purpose to establish secure and equal freedom under the rule of law. Thus, a state's international legal authority to exercise public powers is contingent on its fidelity to its fiduciary mission.
In many respects, international law's regulation of states mirrors the regulation of agents, trustees, guardians, and other fiduciaries under private law. Our argument, however, is not that the international law of statehood is merely analogous to private fiduciary law; rather, we contend that the juridical structure of statehood under international law should be understood as a fiduciary relationship b etween the state and its people. Three dimensions of the fiduciary constitution of state sovereignty merit special attention. First, international law constitutes the state as an international juridical institution and defines its legal capacity (i.e., sovereignty) to exercise rights, assume liabilities, and assert immunities as a fiduciary representative for its beneficiaries. Second, international law distributes sovereignty among states by identifying which persons and territory are subject to a state's administrative authority (i.e., jurisdiction). Third, international law regulates the exercise of public power by placing states under fiduciary obligations to exercise that power in a manner that is consistent with the other-regarding purposes of their entrusted authority (e.g., international human rights). This chapter focuses principally on the first two of these dimensions—the constitutive and distributive functions of international law—to demonstrate how these features have been shaped by the fiduciary character of state sovereignty.
Although this chapter focuses on states, the fiduciary model developed here has significant implications for other institutions. As we will discuss further in Chapter 8, international and regional organizations that serve as secondary guarantors of international legal order likewise stand in a fiduciary relationship with people whose legal or practical interests are subject to the organizations' discretionary powers. Other nonstate actors, such as private military contractors and insurgent groups, may also assume fiduciary obligations when they wield public powers either by delegation from states, international organizations, or regional organizations, or by unilateral assertion of authority over people or territory. To the extent that the international legal frameworks governing these fiduciary relationships are less developed than those governing states, the legal and normative frameworks discussed in this chapter provide a valuable template for designing legal standards to deal with a much wider range of international institutions.
-  Martti Koskenniemi, The Wonderful Artificiality of States, 88 ASIL Proc. 22, 23 (1994).
-  History suggests a variety of possible alternatives to the contemporary juridical state, including clan, city-state, and empire. See generally Philip BoBBitt, The Shield of Achilles: War,Peace, and the Course of History (2002).