19 Oct YJIL Symposium – Observations on a Fiduciary Theory of Jus Cogens
Peremptory norms (jus cogens) form part of the core of the international legal system, and combine both public policy (public order, ordre public) and constitutional elements in the sense that they ban the legal effect of conflicting acts and transactions and prevail over conflicting norms and instruments. Both these qualities follow from the attribute of non-derogability, which the international community has unambiguously recognised in Article 53 of the 1969 Vienna Convention on the Law of Treaties (VCLT). Given the fundamental relevance of jus cogens, the doctrinal opposition to it over the past several decades, although sometimes voiced in a popular and attractive language, has always proved moot and of little influence on how the actual concept of international public policy has developed. Instead, what has happened is an increase in the recognition of the essence and effects of jus cogens in practice and its increasing treatment in doctrine. In this respect the formulation of a fiduciary theory of jus cogens by Professors Criddle and Fox-Decent is yet another welcome development that can facilitate scholars’ understanding of the jurisprudential underpinnings of this rather complex normative phenomenon.
Criddle and Fox-Decent derive the doctrinal basis of jus cogens from Kant’s innate right of children to their parents’ care. This leads to the seeing of States as fiduciaries of the people subject to their power, which goes hand in hand with jus cogens safeguarding higher moral values of the international community. The fiduciary theory is further useful in corresponding to the way international jus cogens is identified: peremptory norms must be “public, clear, feasible, consistent with other like norms, relatively stable over time, and prospective rather than retroactive;” and “[m]ost if not all human rights conform to the[se requirements].” The conclusion that “[p]eremptory 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” is conceptually feasible, and can serve as one of the rational explanations of the jurisprudential essence of international jus cogens.
While this conceptually captures the reason that some peremptory norms – such as fundamental human rights and fundamental principles of international humanitarian law or the principle of self-determination of peoples – bind States, namely because they protect non-State actors against the arbitrary exercise of State authority or the failure of States to protect vulnerable individuals from private violence, it should also be accepted that fiduciary theory does not cover the entire field of jus cogens. Namely, this theory does not explain why the prohibition of the use of force against States – unambiguously recognised as peremptory both at international and national levels – has such superior normative status. The International Court of Justice affirmed the peremptory status of the prohibition of the use of force in Nicaragua v. United States. Although there have been repeated doctrinal attempts to deny this, most notably by Professor Shelton, the careful reading of Nicaragua conveys the opposite message. The Court pointed to the International Law Commission’s (ILC) qualification of the relevant norm as peremptory and then used this factor as an evidence of the relevant norm’s customary character. Once the Court drew consequences from the peremptory status of the norm, it effectively subscribed to the view that the prohibition of the use of force is part of peremptory law. The credibility of Shelton’s approach is thus rather upset by the contextual reading of the Nicaragua judgment, which not only acknowledges the ILC’s view but further relies on it to identify the customary law status of the prohibition of the use of force.
Therefore, the normative framework of jus cogens as established by the community of States naturally contains elements that protect fundamental rights of States as to their existence and survival. Jus cogens covers both State and non-State entities’ rights within its own remit.
Another asset of the fiduciary theory is that it explains jus cogens as a matter of necessity, suggesting that State power and its relation to the people necessitate this category of superior rules. However, the authors claim that “jus cogens challenges the positivist orthodoxy that views State consent as the wellspring of all international legal obligations.” While the nature of peremptory law can indeed justify an initial impression of discrepancy with the requirements of positive law-making, on closer inspection the incompatibility between the two would be an exaggeration. Jus cogens does not actually challenge positivism; on one possible interpretation, it can provide exception to the positivist criteria of law-making because it is public policy; on another interpretation, jus cogens actually conforms to the requirements of positive customary international law, but the constituents of customary law are then redefined in practice, again to conform to the public policy nature of jus cogens. These two explanations are not mutually exclusive.
In more specific terms, the international tribunal’s consistent willingness to accept the customary law status of peremptory norms without necessarily identifying the confirmation of this in the practice of individual States can be explained by the public policy character of jus cogens. Public policy, as is well-known, exists in national legal systems whether or not it is recognised by the sources of positive law, and there is no reason why the international legal system has to go the other way. It should also be appreciated that international and national tribunals have gone only halfway down this path. They have not proposed that the criteria of custom-generation as a matter of positive law-making requirements should be disregarded while dealing with jus cogens; they have instead established that the attitudes and reactions of individual States are presumably not as important as the voice of the entire international community as expressed in the texts of multilateral treaties, as well as UN and related declarations.
Criddle and Fox-Decent rely in their analysis on the Verdross-Lauterpacht view of jus cogens as an implication of morality on the international plane. This approach can further reinforce the positivist take on jus cogens by facilitating the explanation of the relevance or moral and public policy underpinnings of peremptory norms that in turn impact the relevance and weight of various elements of custom-generation in the process of recognition of norms as part of jus cogens.
A further support for the above approach can be found in Article 53 of the 1969 Vienna Convention, which requires that a peremptory norm has to be accepted and recognised as such by the international community as a whole. This provision speaks of the community acceptance and recognition of jus cogens. What it requires is not the acceptance of a particular norm as peremptory individually by most or all States, but the expression of the position of the community as a whole. The evidence of this must be sought in the conclusions and pronouncements of universal forums and universal instruments which can be seen as representing the international community.
Both in doctrine and practice, heavy emphasis is nevertheless placed on the relevance of State practice when the emergence of jus cogens is discussed. It has to be emphasised that two independent considerations guide the relevance of State practice in developing the norms of jus cogens:
First, the relevance of State practice is inherently limited because public policy rules are superior to that practice, setting its permissible limits. Jus cogens would prevail not only over inconsistent treaties but also over inconsistent practices.
Second, state practice can be expressed in multiple ways. For the creation of community-backed rules and identifying their peremptory status, that part of State practice is supposed to matter which comes closest to representing the will and attitude of the community as opposed to the fragmented will of individual States or small groups of States. Such practice can most usefully be derived from multilateral treaties, General Assembly Resolutions and pronouncements of treaty-based organs. For instance, the UN Human Rights Committee stated in its General Comment No 29 (2001) that certain human rights derogable under Article 15 of the International Covenant on Civil and Political Rights (ICCPR), such as the right to fair trial and freedom from arbitrary detention, are part of jus cogens, not least because this is dictated by the overarching need of efficiency of the entire ICCPR framework. The Committee speaks on terms of interpretation and application of the Covenant which is its direct job and the task delegated to it by the body of States-parties; hence, unless the Committee’s position manifests a clear incompatibility with the Covenant, its view affirming the jus cogens status of certain rights has to be seen as inherently better than the lack of individual State practice to affirm the same, or even a possible State practice denying the peremptory status of the pertinent norm.
To conclude, while the utility of the fiduciary theory is reinforced in multiple contexts, one small point of criticism is still called for: like all theories, the fiduciary theory is subject to limits on its utility. The assertion is made that the consensus-driven criterion to identify jus cogens under Article 53 VCLT are misguided, arguably because they do not comply with the requirements of fiduciary theory. No theory, including the fiduciary one, should be taken so far as to attempt a re-appraisal of the relevance of a treaty provision expressing the will of the international community. A theory of law is bound to relate to the law of force; otherwise it would risk becoming a theory for the sake of it.
 This would also follow from the attribution rules under the law of State responsibility, under the International Law Commission’s (ILC) Articles on State Responsibility (2002).
 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, 100-101. The UK House of Lords has also affirmed the peremptory status of the prohibition of the use of force following Nicaragua, see R v Jones,  UKHL 16, 29 March 2006, para. 18 (per Lord Bingham).
 D Shelton, Righting Wrongs: Reparations in the Articles on State Responsibility, 96 AJIL (2002), 843; id., Normative Hierarchy in International Law, 100 AJIL (2006), 291, 304; id., International Law and ‘Relative Normativity,’ Evans (ed.), International Law (2006), 159, 167.
 EJ Criddle & E Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 Yale JIL (2009), 331 at 332, and reiterated later in the article.
 For a detailed analysis of the practice of national and international tribunals on this point, including the repeated affirmation of this approach by all relevant tribunals, see A Orakhelashvili, Peremptory Norms (OUP 2006), Chapter 5.
 Supra note 4, at 355