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B. Do Human Rights Constitute Legal Rights, as Distinguished from Moral or Political Rights?

Human rights are legal rights because they are constitutive of the state's legal authority to provide security and legal order as a fiduciary of the people subject to its power. They are legal rights correlative to the state's fiduciary (and therefore legal) duty to establish legal order on behalf of those people. A state that fails to respect human rights transgresses international law's fiduciary authorization of state sovereignty, an authorization that flows from the fiduciary principle, which is itself a principle of legality.

C. How Does the Fiduciary Theory Provide Guidance for Identifying International Norms, Distinguishing Peremptory from Nonperemptory Norms, and Clarifying Their Scope?

The fiduciary theory aids in identifying international norms by prescribing formal and substantive principles as well as a criterion of legitimacy for distinguishing genuine international norms from counterfeits. According to the fiduciary theory, all such norms serve a common purpose: to protect persons subject to state authority from domination and instrumentalization. Norms may qualify as human rights or jus cogens if they further these objectives and satisfy the fiduciary theory's substantive criteria of integrity, formal moral equality, and solicitude. For norms to qualify further as non-derogable jus cogens, their infringement must always be inconsistent with the state's fiduciary duty to secure legal order on behalf of every person subject to it, which is to say, their infringement would necessarily compromise the entitlement of individuals to basic security under the rule of law.

These substantive criteria offer a practical, principled framework for clarifying the content and legal force of international norms. Human rights such as freedom of expression and the right to work satisfy the basic criteria for human rights because they are consistent with the principles of integrity, formal moral equality, and solicitude.[1] Other human rights such as the prohibitions against genocide and slavery likewise satisfy these three substantive criteria, but they also qualify as peremptory norms because their violation could never be consistent with the state's fiduciary obligation to safeguard individuals' fundamental security under the rule of law. As these examples attest, the fiduciary theory bolsters the determinacy of IHRL and enables states to specify genuine human rights while distinguishing peremptory norms from ordinary, derogable human rights.

The fiduciary theory also helps to elucidate the scope of particular human rights. Consider once again the much-debated prohibition against torture. In the leading judicial decision on the torture prohibition, Ireland v. United Kingdom,[2] the European Court of Human Rights (ECHR) has asserted that torture can be distinguished from cruel, inhuman, and degrading treatment (CIDT) and other abusive acts based on the relative "intensity of the suffering inflicted.”[3] According to the ECHR, the prohibition against torture captures only the most heinous acts of "cruelty”—those that impose mental or physical suffering of "particular intensity.”[4] This vision of torture and CIDT as distinct zones of wrongfulness along an ascending scale of pain and suffering has dominated human rights discourse since the 1970s.[5] But states have found the ECHR's ascending-scale test to be extraordinarily difficult to apply in practice. There is little agreement among courts and publicists about how states should measure the pain or suffering caused by a particular practice, let alone where they should draw the lines between torture, CIDT, and other types of mistreatment.[6] As a consequence, human rights advocates have struggled to explain why the pain and suffering imposed by waterboarding, hanging by the wrists, sleep deprivation, and other enhanced interrogation practices should be considered sufficiently "severe” to trigger the prohibition against torture.

The fiduciary theory draws the prohibitions against torture and CIDT into sharper relief. According to the fiduciary theory's principle of non-instrumentalization, any use of physical or mental violence that treats the individual as a mere means to the state's ends qualifies as CIDT. Thus, enhanced interrogation techniques such as waterboarding, hanging by the wrists, and prolonged sleep deprivation all qualify as CIDT under the fiduciary theory. Before we may label such practices "torture,” however, we must consider an additional inquiry. Whereas the CIDT prohibition addresses the principle of non-instrumentalization generally, the torture prohibition targets a critical subset of CIDT in which the state deliberately inflicts mental or physical suffering for the purpose ofbreaking a subject's will in order to conscript the subject as a means to accomplish an end the subject does not share with the state.[7] For example, public officials engage in torture when they use violence to extract intelligence or coerce confessions from detainees.[8] The torture prohibition is also triggered when public officials intentionally inflict pain and suffering to compel subjects to renounce human rights such as their freedoms of expression, association, or religion.[9] Whatever the state's purpose may be, the fiduciary theory suggests that torture is distinguishable from CIDT based on the state's means to achieve its purpose—the conscription of a subject against her will through the illicit use of violence—rather than the relative "severity” or "intensity” of the subject's pain and suffering.[10] One important consequence of this definition is that public officials who deliberately inflict pain or suffering in any degree for the purpose of extracting information from unwilling subjects (whether through waterboarding, prolonged sleep deprivation, or any other enhanced interrogation technique) violate the prohibition against torture.

Viewed in this light, the fiduciary theory confirms and clarifies much of the CAT's definition of torture, but disputes one element. Under the fiduciary theory, the intentional infliction of "pain and suffering, whether mental or physical,” constitutes torture if it is intentionally inflicted "by or at the instigation of or with the consent or acquiescence of a public official” for the purpose of breaking a subject's will in order to conscript the subject as a means to the state's ends.[4] Consistent with the CAT, torture may involve physical or mental harm, and it must have a nexus to "the instigation of or the consent or acquiescence of a public official or other person acting in an official capacity.”[4] As the ECHR observes in Ireland, however, the CAT stipulates that an act constitutes torture only if it results in "severe pain and suffering.”[13] On the fiduciary theory, acts of torture are not to be defined by the degree of pain or suffering inflicted—whether measured objectively or subjectively—but instead by the torturer's illicit purpose for inflicting pain and suffering: the conscription of a victim's will.[14] The fiduciary theory thus offers a principled framework for clarifying and critiquing the scope and content of the international prohibition against torture.

The conception of torture we propose should not be misconstrued to diminish the importance of the prohibition against CIDT, which also qualifies as a peremptory norm under the fiduciary theory. Any treatment of a detainee that is cruel, inhuman, or degrading violates the fiduciary principles of non-instrumentalization and non-domination by communicating the victim's "total subordination” to his or her captor.[15] Under the CAT, states already bear obligations to prevent CIDT in territory under their jurisdiction.[16] The fiduciary theory suggests further that the international community should adopt more robust legal safeguards against CIDT—including, for example, extending the CAT's non-refoulement obligation to cover individuals who could face CIDT abroad.[17] Even if torture can be distinguished from CIDT based on the distinctive moral harm that torture entails—the infliction of pain and suffering to conscript the victim's will in service of the torturer's ends—the level of legal protection afforded to individuals under these peremptory prohibitions should be the same.

The fiduciary theory affirms that states cannot justify acts of torture by invoking state necessity or citing their failure to ratify human rights treaties. The prohibition on torture is peremptory because states are never authorized to torture their subjects—not even when other lives may hang in the balance—as the fiduciary principle entitles all subjects to be treated as coequal beneficiaries under the rule of law. To permit a state to instrumentalize any subject through violence for the benefit of others would eviscerate the fiduciary authorization of state legal authority. For this reason, the fiduciary theory dictates that torture can never be justified under the rule of law, irrespective of whether perceived state necessity or national lawmakers would dictate otherwise.

Whereas the catalog of human rights that are part of IHRL is relatively well defined on account of the many universal and regional treaties that enshrine them, as indicated above, the list of peremptory norms is much more controversial. The interpretive side of the fiduciary theory affirms as jus cogens the norms set out in the Restatement (the prohibitions against genocide, slavery, murder or disappearance, torture or CIDT, prolonged arbitrary detention, systematic racial discrimination, and military aggression). But perhaps more significant, its prescriptive side allows it both to pick out certain norms as jus cogens that are not usually qualified as such, and to disqualify others that typically figure in catalogs of peremptory norms.

The fiduciary theory challenges conventional wisdom by excluding the venerable norm against piracy from the ranks of jus cogens.[18] Article 15 of the Convention on the High Seas, which is widely recognized as customary international law, defines piracy in relevant part as "illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or passengers of a private ship or private aircraft.”[19] Although such private acts may be illegal under international law, they are not violations of jus cogens because they do not in and of themselves address the limits of sovereign authority in the state-subject fiduciary relationship. To merit recognition as a peremptory norm, the international norm against piracy would have to be repackaged as a constraint on state authority satisfying the fiduciary theory's formal and substantive criteria. This might be accomplished, for example, by shifting the piracy prohibition's focus from pure private conduct to state-sponsored or state-condoned piracy—practices tantamount to aggression.[20] Absent a clear nexus to the state-subject fiduciary relationship, however, the prohibition against piracy is best classified as a common crime.

The fiduciary theory also challenges conventional wisdom by recognizing as peremptory basic rights of due process and the prohibition on corruption. Beginning with due process, the fiduciary conception of state sovereignty demands that states afford all individuals the fundamental procedural protections of due process. International instruments such as the Universal Declaration and the ICCPR have long recognized that states must employ certain minimal procedures to safeguard human life and liberty from arbitrary deprivation, including the right to notice of criminal charges, an opportunity to be heard and to present evidence, and adjudication by an independent and impartial tribunal.[21] As international criminal law has matured over the past two decades, these fundamental due process norms have been codified as mandatory procedural rules for international criminal tribunals,[22] and a few scholars have asserted that due process should be recognized as a peremptory norm.[23]

The fiduciary theory supports classifying due process as a peremptory norm. A state transgresses its general fiduciary duty of solicitude and the principle of non- instrumentalization when it deprives individuals of life or liberty without employing decision-making procedures that are sufficiently robust to minimize the risk of a biased, arbitrary, or otherwise unfair hearing. What due process demands in a particular proceeding will turn upon contextual factors,[24] though some basic features of a fair hearing are clearly indispensable in all cases, such as the need for an impartial adjudicator. The basic attributes of a fair hearing protect individuals against arbitrary or self-serving government action and are integral to the state's fiduciary obligation to secure the rule of law. As such, they cannot admit derogation even during national emergencies, lest the state abdicate its fundamental fiduciary role.[25]

The international norm against state corruption has received even less attention as a candidate for peremptory status.[26] This oversight cannot be explained away on the ground that public corruption is a lesser evil than other grave abuses of state power. To cite but one example, human rights observers in Angola chronicled "the disappearance of over four billion dollars from the public coffers [between 1997 and 2002,] an amount ‘roughly equal to the total amount spent on the humanitarian, social, health, and education needs of a population in severe distress.' ”[27] Such brazen kleptocracy undermines the very governmental institutions that are charged with preserving legal order and jeopardizes the physical security and liberty of nationals who depend on government assistance for relief from violence, starvation, and disease.

Viewed from the fiduciary theory's perspective, the international norm against public corruption merits peremptory authority within international law. The prohibition against self-dealing meets the fiduciary theory's substantive criteria by advancing the best interests of the people rather than state officials (integrity), refusing to privilege certain private interests over others arbitrarily (formal moral equality), and manifesting due regard for the interests of its beneficiaries (solicitude). The anticorruption norm also satisfies the specific substantive criteria because it requires the state to treat its national patrimony (e.g., tax revenue, resources, public services) as a public good to which every national has an equal claim under the rule of law and relevant municipal legislation. Like the prohibitions against summary execution and torture, the prohibition against corruption is necessary to ensure that the state regards its nationals as ends in themselves and never merely as means for the ends of others. More broadly still, there can be no derogation from the norm against corruption because corruption is the antithesis of the other-regarding mandate the fiduciary state enjoys to secure legal order. For these reasons, the fiduciary theory elevates the international norm against public corruption to the status of non-derogable jus cogens.[28]

Recognizing the norm against public corruption as a peremptory norm illuminates an important feature of jus cogens itself; that is, that peremptory norms track a particular quality of wrong rather than a quantity of harm. Public corruption offends the state-subject fiduciary relation irrespective of whether the corrupt acts are large or small in scope: a low-level public official who steals a pittance or accepts a petty bribe violates the peremptory norm against corruption, just as a head of state violates jus cogens by draining the state treasury for private gain. The prohibition against corruption thus illustrates that the scope of jus cogens is not limited to acts such as military aggression or genocide that inflict harm on a massive scale. Violations of peremptory norms such as the prohibitions against corruption and torture are necessarily wrongful and legally impermissible on any scale.

  • [1] The ICCPR and ICESCR provide that freedom of expression, the right to work, and various other human rights are subject to state derogation under certain circumstances. See ICCPR, supra note 21, arts. 4 & 19(2)-(3); ICESCR, supra note 22, arts. 4 & 7.
  • [2] Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A) at 66 (1978).
  • [3] Id. ^ 167.
  • [4] Id.
  • [5] See, e.g., Prosecutor v. Brdanin, Case No. IT-99-36-T, Judgment (Sept. 1, 2004),^ 483 (ICTY) ("The seriousness of the pain or suffering sets torture apart from other forms ofmistreatment.”).
  • [6] See id. ^ 484 (considering objective factors such as the "nature, purpose, and consistencyof the acts committed,” and subjective factors such as "the physical or mental condition of thevictim, the effect of the treatment,” and "the victim's age, sex, state of health, and position ofinferiority”); Gail H. Miller, Defining Torture 2, 8 (2005) (observing that it is "virtuallyimpossible to quantify ‘severe pain and suffering' or to define it in absolute terms”).
  • [7] Cf. David Sussman, What's Wrong with Torture?, 33 Phil. & Pub. Aff. 1, 4 (2004) (arguingthat the unique harm of torture is that it "forces its victim into the position of colluding againsthimself through his own affects and emotions, so that he experiences himself as simultaneouslypowerless and yet actively complicit in his own violation”).
  • [8] CAT, supra note 23, art. 1(1).
  • [9] Id.; see also David Luban, Liberalism, Torture, and the Ticking Bomb, 91 Va. L. Rev. 425,433-36 (2005) (discussing these and other purposes).
  • [10] This principle is reflected obliquely in CAT article 1(1), which provides that torture "doesnot include pain or suffering”—however intense—that is not purposeful but merely "incidentalto lawful sanctions.” CAT, supra note 23, art. 1(1).
  • [11] Id.
  • [12] Id.
  • [13] Id. (emphasis added).
  • [14] Article 1 of the CAT provides in part that at an act will count as torture if it consists in theintentional infliction of pain or suffering "on a person for such purposes as . . . punishing him foran act he or a third person has committed or is suspected of having committed.” Admittedly, torture conducted for this purpose, or merely to satisfy the sadism of the abuser, does not conformneatly to the conscription theory, as the "punished” victim may be wholly passive, with nothingspecifically asked of him. Nonetheless, to the extent that the wrongdoing official purports to beengaged in an act of lawful punishment, he implicitly conscripts the victim to be part of a sham,as torture is an infliction of lawless violence rather than punishment. In the case of the puresadist, the victim is deliberately conscripted to be a victim, a conscription that remains salienteven if the sadist seeks nothing more than his prisoner's victimization.
  • [15] See David Luban, Torture, Power, and Law 128-36 (2014) (articulating a communicative theory of torture and arguing that most, if not all, CIDT qualifies as torture).
  • [16] See CAT, supra note 23, art. 16.
  • [17] See id. art. 3 ("No State Party shall expel, return (‘refouler') or extradite a person to anotherState where there are substantial grounds for believing that he would be in danger of being subjected to torture.”); see also Luban, supra note 127, at 128-36 (proposing a broader definition oftorture that would encompass CIDT).
  • [18] See Ian Brownlie, Principles of Public International Law 489 (6th ed. 2003)(characterizing the rule prohibiting piracy as jus cogens).
  • [19] Convention on the High Seas, art. 15, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82(emphasis added).
  • [20] Lord McNair, The Law of Treaties 214-15 (1961) (“Can there by any doubt that atreaty whereby two States agreed to permit piracy in a certain area, or against the merchant shipsof a certain State, with impunity, would be null and void?”).
  • [21] See, e.g., UDHR, supra note 18, art. 10 (proclaiming the right to a fair and public hearing inan independent and impartial tribunal).
  • [22] See Gregory S. Gordon, Toward an International Criminal Procedure: Due ProcessAspirations and Limitations, 45 Colum. J. Transnat'l L. 635, 641-70 (2007) (chroniclingthese developments).
  • [23] See, e.g., Orakhelashvili, supra note 45, at 60 (describing “due process” as a peremptorynorm). But see Michael Byers, Book Review, 101 Am. J. Int'l L. 913, 916 (2007) ( asserting that“due process guarantees and the right to a fair trial” are “derogable”).
  • [24] See, e.g., Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (defining due process under theU.S. Constitution to require a multifactor balancing test).
  • [25] See Chapter 6 for discussion of the requirements of due process in the context of war-on-terror detention.
  • [26] A few scholars have argued that wide-scale public corruption should be considered aninternational crime against humanity, suggesting by implication that the norm should be treatedas peremptory. See, e.g., Sonja B. Starr, Extraordinary Crimes at Ordinary Times: InternationalJustice Beyond Crisis Situations, 101 Nw. U. L. Rev. 1257, 1297 (2007) (“Given the massive suffering caused . . . grand corruption seems to amount to a paradigmatic example of what shouldbe considered an international crime.”).
  • [27] Starr, supra note 138, at 1283 (quoting Human Rights Watch, Some Transparency,No Accountability: The Use of Oil Revenue in Angola and Its Impact on HumanRights (2004),; see also Ndiva Kofele-Kale, The Right to a Corruption-Free Society as an Individualand Collective Human Right: Elevating Official Corruption to a Crime Under International Law, 34Int'l Law. 149, 161-63 (2000) (reviewing comparable examples of public corruption in Nigeriaand the former Republic of Zaire).
  • [28] Note that recognition of public corruption as a peremptory norm arguably renders Article50 of the VCLT superfluous, as “the corruption of [a State's] representative” under Article 50would render a treaty provision invalid under Article 53. VCLT, supra note 3, art. 50.
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