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Detaining Foreign Nationals


In this chapter, we explore how the fiduciary role of states as joint fiduciaries of humanity supports cosmopolitan obligations owed to foreign detainees captured during armed conflict. The fiduciary theory explains key features of the law of armed conflict relating to detention. More broadly, the theory's account of cosmopolitan citizenship challenges the idea that national security concerns can ever justify exempting detention programs from independent scrutiny for compliance with due process, irrespective ofwhere or on what grounds a state holds foreign nationals captive.

The idea of cosmopolitanism enjoys both a venerable history and a contemporary resurgence. The history dates back to Diogenes, who in 300 B.c. described himself as a "citizen of the world.”[1] Stoics such as Cicero would later develop the idea of universal citizenship, but in a Janus-faced way that would foreshadow the promise and peril of international law generally.[2] On the one hand, Cicero believed that all humans shared a capacity for reason and susceptibility to universal law, so it was possible for all to be equal subjects under universal law.[3] But on the other hand, his cosmop- olis was coextensive with the Roman Empire; those who did not accept membership in the empire, such as the German "barbarians,” were excluded from universal citizenship.

In the modern period, the rise of the nation-state produced municipal law and the law of nations, which together left little room for the idea of universal citizenship. Theorists such as Grotius, Pufendorf, Vattel, and Wolff developed treatises on international law premised on the idea that states, like individuals in the state of nature, were subject to universal laws of nature.[4] For these writers, municipal law governed interactions between citizens (domestic private law) as well as legal relations between citizens and their states (domestic public law). The law of nations or ius gentium governed inter-state relations. Kant, however, recognized that municipal law and the law of nations, taken together, left a crucial gap: neither of these legal regimes, as then understood, comprehended relations between states and citizens of other states, or foreign nationals.5 Kant argued that a ius cosmopoliticum or "law of world citizenship” was necessary to supplement municipal law and the law of nations.6

Over the past few decades, cosmopolitanism has given rise to voluminous literatures in both political philosophy and legal scholarship. The political philosophy literature takes its motivation from the vast economic disparities that separate the global north from the global south.7 Its central question is whether wealthy northern states and their members owe substantial duties to the disadvantaged in the south, duties that typically would involve restructuring international financial institutions and a far greater commitment of resources than is currently available through foreign aid. At the heart of the debate between cosmopolitans and their nationalist adversaries is the question of whether northern states and their citizens are entitled to treat their own interests as matters of exclusive or predominant moral concern, and if so, whether the priority of national allegiance contravenes the cosmopolitan agenda for global reform.8

Legal cosmopolitanism tends to be less ambitious in its normative prescriptions than its political-philosophy counterpart. Legal cosmopolitans typically draw on Kant's comparatively thin idea of cosmopolitan law rather than full-blown theories of justice. For example, Mark Walters points to the capacity of cosmopolitan law to fill the gap between municipal law and the law of nations in the context of nonnationals subject to executive power (typically the power to detain and deport).9

The Law of Nations, or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns (1834) (1758).

  • 5. See Immanuel Kant, Perpetual Peace (2005) (1795).
  • 6. Id. at 20.
  • 7. See, e.g., David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995); Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (2002); Brian Barry, Statism and Nationalism: A Cosmopolitan Critique, in Global Justice 12-66 (Ian Shapiro & Lea Brilmayer eds., 1999); Charles R. Beitz, Cosmopolitan Ideals and Nationalist Sentiment, 80J. Phil. 591 (1983); Martha C. Nussbaum, Patriotism and Cosmopolitanism, in For Love of Country: Debating the Limits of Patriotism 2-17 (Martha C. Nussbaum & Joshua Cohen eds., 1996); Peter Singer, Famine, Affluence, and Morality, 1 Phil. & Pub. Affs. 229 (1972).
  • 8. See, e.g., David Miller, On Nationality (1995) (defending nationalism); Held, supra note 7 (defending liberal cosmopolitanism); Kok-Chor Tan, Justice Without Borders: Cosmopolitanism, Nationalism, and Patriotism (2004) (defending liberal cosmopolitanism).
  • 9. See, e.g., Mark Walters, The Common Law Constitution and Legal Cosmopolitanism, in The Unity of Public Law 431 (David Dyzenhaus ed., 2004) (arguing that the common law ofjudi- cial review incorporates cosmopolitan values as part of its rule-of-law framework for principled statutory interpretation).

Garrett Brown fleshes out the duties of hospitality that Kant took to be constitutive of ius cosmopoliticum, noting that they embody five rights or freedoms: (i) the right to exit, enter, and travel within and between states; (ii) freedom from hostility and negligence that would harm one's body or property; (iii) freedom of speech; (iv) freedom to engage in commerce; and (v) freedom from false, misrepresented, extorted, or fraudulent contracts.[5] More generally, both international human rights law (IHRL) and international humanitarian law (IHL) embrace Kant's basic cosmopolitan claim that supranational law consists in more than just the law of nations. In both cases the duty-bearer is ordinarily the state, while the right-holder can be (and in the case of IHL typically is) a foreign national.

Drawing inspiration from the Kantian idea of cosmopolitan law, we begin in Part II by outlining the fiduciary theory's account of the duties owed by a detaining state to captured combatants or alleged terror suspects. We shall see that the detaining state-detainee relationship mirrors the parent-child relationship in important respects: in both cases the law, through the fiduciary principle, must set the terms of the relationship in order for it to be rightful.

In Part III we argue that the fiduciary model provides a lucid vantage point from which to explain and critically assess the law relating to foreign nationals detained during armed conflict. As an interpretive theory, the fiduciary model explains core features of the prisoner-of-war regime established in the Third Geneva Convention of 1949[6] and the 1977 Additional Protocols.[7] Specifically, the fiduciary theory explains the extensive protections afforded prisoners of war as an appropriate legal response to the necessarily intense and liberty-infringing power the detaining state exercises over prisoners. The protections themselves are explained as a compendium of rules that, within the restrictive confines of their application, generally aim to minimize the abuse of prisoners. As a prescriptive theory, the fiduciary model censures elements of the prison-of-war regime that facilitate instrumentalization or domination, such as the permissibility of forced labor.

Part IV turns to the war on terror and the status of detainees held potentially indefinitely without either a civilian trial or prisoner-of-war status. A number of these cases, discussed below, have reached the u.S. Supreme Court. The interpretive dimension of the fiduciary model explains due-process safeguards and the Court's grant of habeas corpus as the legal burden that arises from the detaining state's exercise of detention power. Where habeas corpus or robust procedural safeguards are absent, as is the case of many detainees held by U.S. or Afghan forces at or near Bagram Air Base in Afghanistan (Bagram), the prescriptive side of the theory explains the wrongfulness of these "black holes”; detention under such conditions is wrongful because it constitutes domination of the detainee while treating her as a mere means of the detaining state's national security policy. Significantly, the fiduciary model supplies resources to guide policy on due process under nonideal conditions, which in this case means real-world conditions in which war-on- terror detainees benefit from neither civilian trials nor prisoner-of-war status. The war-on-terror cases will thus show that the fiduciary theory is not pie-in-the-sky idealism, but instead offers a practical, theoretical framework capable of guiding balanced policy in circumstances where the detaining state refuses to grant civilian trials or recognize prisoner-of-war status.

Last, Part V addresses a hard case endemic to this real-world context: the detention of individuals on the basis of classified evidence they are barred from seeing and contesting. Here too, where the open-court principle of knowing the case to meet is plainly infringed, the fiduciary theory offers valuable insight, counseling the adoption of in situ substitute measures and habeas corpus review, both of which aim to minimize the risk of arbitrary detention.

  • [1] Diogenes Laertius, The Lives of Eminent Philosophers (C.D. Yonge trans.), (last visited Nov. 26, 2015).
  • [2] See Garrett Wallace Brown, Moving from Cosmopolitan Legal Theory to Legal Practice: Modelsof Cosmopolitan Law, 28 Leg. Studs. 430, 432-34 (2008).
  • [3] See Marcus Tullius Cicero, On the Commonwealth and on the Laws (1999).
  • [4] See Hugo Grotius, The Rights of War and Peace (2005) (1625); Samuel Pufendorf,On the Law of Nature and of Nations (1703) (1672); Christian Wolff, The Law ofNations According to the Scientific Method (2014) (1749); Emmerich de Vactel,
  • [5] See Brown, supra note 2, at 437.
  • [6] Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75u.N.T.S. 135 [hereinafter Third Convention]; see also Convention (I) for the Amelioration of theCondition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 u.N.T.S.31; Convention (II) for the Amelioration of the Condition of the Wounded and Sick andShipwrecked Members of the Armed Forces at Sea, 12 August 1949, 75 u.N.T.S. 85; Convention(IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 u.N.T.S.287 [hereinafter Fourth Convention].
  • [7] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to theProtection of Victims of International Armed Conflicts, 8 June 1977, 1125 u.N.T.S. 3 [hereinafter API]; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 u.N.T.S. 609[hereinafter APII].
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