[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.]
We live in a shrinking world where interdependence between countries and communities is intensifying. This interdependence tests the limits of the traditional concept of sovereignty which crystallized at a time when distances between nations were large and cross-border externalities were rare; a time when peoples sought self-determination and self-sufficiency, justified by the perception of a perfect fit between the authors of the law and those subject to its rule. Nowadays sovereigns manage resources that are linked in many ways to resources that belong to others. They shape through daily regulatory decisions the life opportunities of foreigners in faraway countries, while the latter cannot participate meaningfully in those decisions either directly or through their governments. This reality questions the solipsistic vision of state sovereignty as the ultimate source of authority, a vision that yields outcomes that are inefficient, inequitable and undemocratic.
The misfit between the increasingly outdated and inadequate concept of sovereignty and pressing contemporary demands has led several scholars to explore more “globalist” visions, norms and institutions in lieu of state sovereignty. But one must not be too quick to endorse the demise of sovereignty and the transfer of state authority to global institutions. Sovereigns continue to be key venues for policy-making and for reviewing decisions made by global bodies. Precisely because sovereigns remain crucial global actors, their global role should be reflected in law: they must take on a “trusteeship” role that entails obligations towards all those potentially affected (negatively or positively) by their policies.
The first aim of my article is to provide a normative foundation for the claim that sovereigns should be regarded also as trustees of humanity rather than the trustees only of their own people. I present three distinct normative approaches for grounding the obligation of sovereigns to weigh other-regarding considerations: the right to self-determination whose exercise exclusively within national communities can actually undermine peoples’ ability to have their lives in their own hands; the obligation of national governments to recognize the equal moral worth of all individuals, and hence to justify why they treat non-nationals differently; and the obligation of the same governments to explain to others their exclusive use of portions of the earth, which inherently belongs to all. Each of these three interrelated grounds leads to the conclusion that sovereignty must be regarded as embedded in an encompassing global order that delineates not only states’ powers but also their obligations. These obligations essentially require sovereigns to exercise their authority in ways that take account of the interests of all individuals potentially affected by them either negatively or positively. While sovereigns may have good reasons to give priority to the interests of their citizens, they must nonetheless keep in mind the interests of those beyond their borders and, to some non-negligible degree, be accountable to them.
The article then identifies the minimal normative and procedural other-regarding obligations that arise from the trusteeship concept. My choice here is to focus on the minimal obligations is based on the pragmatic concern with the imposition of global burdens on states without safeguards that ensure appropriate space for preferential treatment of one’s own citizens and adequate mechanisms for burden-sharing among states. Obviously, the trustee sovereignty concept suggests that sovereigns have an obligation to mutually explore and develop the current system of sovereign states. But this exploration requires a separate discussion which is beyond the scope of the article.
The idea is therefore to explore the minimal obligations that apply to all branches of the sovereign state (legislatures, executives, and courts), regardless of whether other sovereigns reciprocate (although reciprocity or the lack thereof could be a relevant consideration when making the decision). These minimal obligations include the obligation to take the interests of foreigners into account when formulating and implementing policies; to provide voice in their decision-making processes to all those affected by their policies; and to accommodate foreign interests if doing so is costless to the state (or even to incur costs in cases of catastrophes). The article further suggests that these minimal obligations are already embedded in several doctrines of international law that delimit the rights of sovereigns, such as the general doctrine on abuse of rights or specific rights of passage through straits or through another state’s land.
This emphasis on minimal obligations that are primarily procedural is informed by the administrative law-based tradition, which takes decision-making processes seriously. This tradition puts faith in the power of voice of affected stakeholders and in the discipline of accountability of decision-makers. The assessment is that public participation and accountability are not only valuable intrinsically, but they also contribute to better informed, more efficient and also more egalitarian outcomes.
The invocation of “humanity” by sovereigns has too often served as mask to colonial and other types of illegitimate foreign intervention. The trusteeship concept as developed here is not susceptible to similar concerns. It is invoked not to justify intervention by one or several states in another state’s affairs (as, for example, the concept of responsibility to protect envisions), but just the opposite – it invites the foreigner to have voice in the sovereign’s decision-making processes. The minimal trusteeship obligations sets-forth a limiting set of obligations rather than an enabling one. Indeed, the main promise of the trusteeship concept lies in its limiting impact on powerful countries that shape the opportunities of individuals everywhere: global leadership generates global accountability obligations.
The article was written as a framing paper for the GlobalTrust research project that I direct at Tel Aviv University Faculty of Law. Initially funded by the Israeli Science Foundation (2010-2013), the project is now funded by a European Research Council Advanced Grant (2013-2018). The project will explore the historical and moral background of the state trusteeship concept, assess the specific obligations that states owe to foreigners stakeholders in different areas of international and constitutional law (investments and trade law, environment law, human rights law, international humanitarian law, etc.), and evaluate the possible institutional mechanisms (such as international and national courts) that could legitimize the external monitoring and review of states’ compliance with such other-regarding obligations.