YJIL Symposium – A Fiduciary Theory of Jus Cogens

by Evan Criddle and Evan Fox-Decent

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Evan Criddle

Evan Criddle

<p>Evan Fox-Decent</p>

Evan Fox-Decent

We would like to begin by thanking Opinio Juris and the Yale Journal of International Law for hosting this symposium, and Alexander Orakhelashvili for generously agreeing to act as our interlocutor.

In international law, the term “jus cogens” refers to norms that are considered peremptory in the sense that they are mandatory and do not admit derogation. In our article, we argue that peremptory norms are inextricably linked to the sovereign powers assumed by all states. The key to understanding international jus cogens lies in Immanuel Kant’sdiscussion of the innate right of children to their parents’ care in The Metaphysics of Morals (pp. 98-99). Drawing on Kant’s account, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to their power. An immanent feature of this state-subject fiduciary relationship is that states must comply with jus cogens. Just as important as the theory’s justification of peremptory norms, however, is its capacity to clarify the content of jus cogens by generating discrete criteria for identifying peremptory norms.

1. Kant’s Model of Fiduciary Relations

To apprehend the fiduciary character of state legal authority, consider the structure of familiar fiduciary relations such as trustee-beneficiary, agent-principal and parent-child relations. Fiduciary relationships arise from circumstances in which one party (the fiduciary) holds discretionary power of an administrative nature over the legal or practical interests of another party (the beneficiary). This administrative power is other-regarding, purposive and institutional; it is held so as to be used on behalf others, for limited purposes, and within the framework of a legal institution such as a family or a corporation. The beneficiary is peculiarly vulnerable to the fiduciary’s power in that she is unable, either as a matter of fact or law, to exercise the entrusted power.

Kant sets out the moral basis for fiduciary obligations in an argument concerning the duties that parents owe their children. For Kant, legal rights embody the realization of a person’s moral capacity to put others under legal obligations. Fiduciary obligations to children stem from the parents’ unilateral creation of a person who did not consent to be a party to the parent-child relationship and who cannot survive without support. These circumstances trigger the child’s moral capacity to place the parents under a fiduciary duty to provide for her security.

Extending Kant’s reasoning, the dignity intrinsic to legal personality supplies the moral basis for fiduciary obligation in other contexts, as well. A relationship in which the fiduciary has unilateral administrative power over the beneficiary’s interests can be understood as a relationship mediated by law only if the fiduciary (like the parent) is precluded from exploiting her position to set unilaterally the terms of her relationship with the beneficiary. The fiduciary principle authorizes the fiduciary to exercise power on the beneficiary’s behalf, but subject to strict limitations arising from the beneficiary’s vulnerability to the fiduciary’s power and her intrinsic worth as a person. In the case of the state-subject fiduciary relationship, we argue that these limitations include jus cogens norms.

2. Fiduciary States

The argument for the state as a fiduciary draws on the fiduciary concept’s general constitutive features. Legislative, executive, and judicial powers exhibit the institutional, purpose-laden, and other-regarding characteristics that constitute administration. Legal subjects, as private parties, are not entitled to exercise public powers and thus are peculiarly dependent upon and vulnerable to public authority. It follows that the state’s sovereign powers give rise to a fiduciary obligation.

To see by way of illustration that the minimal content of this obligation includes jus cogens, consider the peremptory prohibition against slavery. The fiduciary principle authorizes the state to secure legal order on behalf of every agent subject to state power. Because each person is an equally valid subject of the fiduciary authorization of state authority, each must be accorded an equal opportunity to acquire rights which can enshrine and protect their respective interests. It follows that a state cannot support slavery without contravening its most basic fiduciary obligation to ensure that each agent subject to its powers is regarded equally as a person capable of possessing legal rights.

Under the fiduciary theory, jus cogens norms arise from the very concept that tends to be pitted against it – sovereignty — precisely because all states exercise sovereign powers which trigger application of the fiduciary principle. By positing the state as a fiduciary of its people, the fiduciary theory co-opts sovereignty by deriving peremptory norms from the very powers that are constitutive of it.

3. Criteria for Identifying Peremptory Norms

Unlike previous theories of jus cogens, the fiduciary theory points to discrete formal and substantive criteria that establish necessary and sufficient conditions for identifying peremptory norms.

The fiduciary theory borrows its formal criteria from Lon Fuller’s internal morality of law, a set of desiderata that legal norms should aspire to satisfy irrespective of their substantive aims. Peremptory norms must embody general and universalizable principles. They must also be public, clear, feasible, consistent with other like norms, relatively stable over time, and prospective rather than retroactive. Norms that flagrantly violate any of these principles would either frustrate the state’s fiduciary mission or simply subvert the state’s ability to establish legal order, and therefore would lack any justification from the point of view of the fiduciary model.

Three further necessary and substantive conditions flow from the structure and content of the fiduciary theory. First is a principle of integrity: peremptory norms must have as their object the good of the people rather than the good of the state’s officials. Second is a principle of formal moral equality: the fiduciary state owes a duty of fairness or even-handedness to the people subject to its power. Third is a principle of solicitude: peremptory norms must be solicitous of the legal subject’s legitimate interests.

The fiduciary theory’s three substantive criteria, like the formal criteria, establish necessary rather than sufficient conditions of jus cogens. Most if not all human rights conform to them. Even when considered collectively, the formal and substantive criteria enumerated thus far do not provide a basis for distinguishing peremptory norms from nonperemptory norms.

Happily, the fiduciary theory points to other substantive criteria capable of specifying peremptory norms. The fourth substantive criterion of jus cogens is a principle of fundamental equal security: norms that are indispensable to the fundamental and equal security of individuals qualify as peremptory norms. For example, some international prohibitions, such as the norms against genocide and arbitrary killing, target state actions that literally annihilate a state’s subjects. Because respect for such norms is indispensable to the state’s specific fiduciary obligation to secure legal order, the state cannot derogate from these norms under any circumstances. The principle of fundamental equal security thus enables us to distinguish nonderogable from derogable norms, and thereby supplies a sufficient condition to the necessary formal and substantive conditions that precede it.

Significantly, the principle of fundamental equal security is not a necessary condition because another independently sufficient condition is implicit within the state’s obligation to secure legal order: adherence to the rule of law. The fifth substantive criterion of jus cogens is a procedural principle regarding the rule of law: a norm will count as jus cogens if respect for it is indispensable to securing legality for the benefit of all.

4. Rethinking the Canon of Peremptory Norms

Seven categories of jus cogens norms appear in the influential Restatement on Foreign Relations of the United States: the prohibitions against genocide; slavery or slave trade; murder or disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and “the principles of the United Nations Charter prohibiting the use of force.” Tellingly, each of these norms merits peremptory treatment under the fiduciary theory because they deny a state’s subjects secure and equal freedom.

The fiduciary theory also clarifies jus cogens’s applicability to other international norms. Consider, for example, the norm against public corruption. The prohibition against public corruption satisfies the fiduciary theory’s substantive criteria by advancing the best interests of the people rather than state officials, and by requiring the state to treat its national patrimony as a public good to which every national has an equal claim under the rule of law.

The fiduciary theory also distinguishes norms that do not qualify as jus cogens. For instance, the fiduciary theory excludes the prohibition against piracy from the ranks of jus cogens. Article 15 of the Convention on the High Seas defines piracy 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.” To merit recognition as a peremptory norm under the fiduciary theory, the prohibition against piracy would have to be repackaged as a constraint on state authority.

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In sum, the fiduciary nature of state legal authority furnishes a persuasive explanation for peremptory norms and their relationship to state sovereignty under international law. Peremptory norms such as the prohibitions against slavery and torture are not exceptions to state sovereignty, but rather constitutive constraints flowing from the state-subject fiduciary relationship itself.

http://opiniojuris.org/2009/10/19/yjil-symposium-a-fiduciary-theory-of-jus-cogens/

3 Responses

  1. I haven’t read the article yet, but the overview given here sounds fascinating.

  2. I’ll perhaps comment more when I read the paper and find the time but for now permit me to say that while I welcome an articulate defense of jus cogens norms, I’m not inclined to look with favor upon the “state as a fiduciary” model, even if the parents/cities analogy has impressive philosophical and legal pedigree, being an important part of the argument made by the Laws to Socrates in Plato’s Crito, indeed, this is our earliest account of political obligation. Both this analogy and the fiduciary model appeal, as A. John Simmons has explained, to two special relationships: benefactor-beneficiary and parent-child, “neither of which need be entered voluntarily, and both of which are ordinarily take to ground special obligations.” The appeal of this model has understandably persisted into our own time, if only because there is a measure of truth to it. If your argument is to persuade, it seems we need to find the idea that filial obligations are analogous to political obligations compelling, which I suspect those who identify with Lockean political philosophy, philosophical anarchism, and libertarianism, do not (nor, if I’m not mistaken, did Kant himself). That said, I look forward to reading the paper, as I’m constitutionally drawn to any sophisticated argument on behalf of jus cogens norms that appreciates the fact that such norms are best understood as transcending the consensual nature of an appeal to customary international law, which precludes them from being universally binding in character (as Larry May notes, ‘such norms can be part of customary international law and still be non-consensual as long as the non-consensual nature of these norms is not thought to derive from their being originally consensual’).

  3. I appreciate the effort to establish a more persuasive theory of jus cogens norms, or perhaps more accurately, universal human rights. I am just not sure this formulation is any more persuasive than others.

    On a quick reading of the article, this analogy seems only to fully support a theory of jus cogens norms over a state’s internal governance. To extend the familial analogy outside the “family” – to those “outsiders” who are or become otherwise subject to a state’s sovereign power under every circumstance – seems too much weight for the analogy to bear. This is represented in two key analytical extensions of the argument.

    (1) “Just as the fiduciary principle governs the domestic exercise of sovereign power, it may also be thought to underlie the authority of international law to regulate the distribution of sovereignty, for in both cases the dignity of the people subject to sovereign power is at stake.” The arguments over humanitarian intervention belie the notion that there is or will be a uniform view of such norms.

    (2) Then comes the “citizen of the world” extension of this notion to support the conclusion that: “On the fiduciary view, states owe every individual subject to state power a fiduciary obligation to respect their human rights because every agent so situated is peculiarly vulnerable to state power. The exercise of state power over vulnerable noncitizens engages the fiduciary principle because state power is always quintessentially fiduciary in nature; it is always purposeful, other-regarding, and institutional in character—and it retains this fiduciary character regardless of whether it is exercised over a citizen or a foreign national. As consequence, exercises of state power over noncitizens trigger a fiduciary obligation that requires the state to respect noncitizens’ human rights. Thus, in the conduct of foreign affairs, states must respect the rights of nonsubjects enshrined under jus cogens.”

    These are theoretically unsatisfying for the many of the same reasons other theories are unsatisfying. They undermine the fundamental basis for international law, sovereignty. They also undermine the ultra-positivist modern view of the sources of international law (at least outside of the human rights realm). The point is admitted in the article where the authors state: “Just as there is no need to pretend that sovereignty arises from the consent of the people, there is no need to pretend that jus cogens norms arise from state consent or interstate associational duties.”

    The reason the fiduciary theory cannot encompass all currently theorized notions of jus cogens norms (against piracy, for example) is because it does not (or even pretend to – as the last quote above indicates) describe jus cogens norms that govern the relationship of states and their nationals inter se. It is an odd sort of “international law” that fails to do so. Indeed, it is possible to argue (as some recent administrations have unfortunately done) that a state’s internal fiduciary obligations, in some circumstances, are contrary to supposed external obligations. Thus we have heard arguments for torture and preemptive self defense (to take both individualized and nationalized examples).

    Again, I do not here argue for or against notions of universal human rights. I merely suggest that the fiduciary theory offers no particular advantage in arguing for their existence than do other arguments the authors survey.

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