Public International Law: A Fiduciary Theory of Jus Cogens

I. INTRODUCTION

Jus Cogens

Literally, “compelling law.”
In international law, the term “jus cogens” refers to norms that command peremptory authority, superseding conflicting treaties and custom.
The influential Restatement on Foreign Relations of the United States (Restatement) defines jus cogens to include, at a minimum, 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.”

Jus cogens norms are considered peremptory in the sense that they are:

mandatory,
do not admit derogation, and
can be modified only by general international norms of equivalent authority.

II. PEREMPTORY NORMS IN THEORY AND PRACTICE

A. Peremptory Norms in Historical Perspective

1600s - 1700s: Hugo Grotius, Emer de Vattel, and Christian Wolff

drew upon the Roman law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate consensual agreements between states from the “necessary” principles of international law that bind all states as a point of conscience regardless of consent.

In contrast to ordinary legal obligations derived from treaty or custom, jus scriptum norms would not permit derogation, Vattel reasoned, because they derived from a higher source—the natural law of reason itself.
Vattel did not specify which obligations would constitute the “necessary Law of Nations,” preferring perhaps to leave this determination to “the laws of conscience.”

Early 1900s: Lassa Oppenheim and William Hall

asserted confidently that states could not abrogate certain “universally recognized principles” by mutual agreement.
1922-1946: Outside the academy, judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions.
Collectively, these authorities perpetuated the classical understanding that certain imperative norms are of such importance that they supersede conflicting consensual agreements between states.

1937 Forbidden Treaties in International Law by Alfred von Verdross

Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements.
Just as municipal courts were empowered to void contracts contra bonos mores, Verdross asserted that courts must set aside international agreements in conflict with international jus cogens (although he did not use the specific term until later).
Verdross defined peremptory law as the “ethical minimum recognized by all the states of the international community.”

To illustrate the phenomenon of international jus cogens, Verdross argued that states bore an imperative duty under international law to undertake certain “moral tasks,” including the “maintenance of law and order within states, defense against external attacks, care for the bodily and spiritual welfare of citizens at home, [and] protection of citizens abroad.”
According to Verdross, examples of international treaties inconsistent with jus cogens would include those “binding a state to reduce its police or its organization of courts in such a way that it is no longer able to protect at all or in an adequate manner, the life, the liberty, the honor, or the property of men on its territory.”
Treaties might also violate jus cogens if they obligated “a state to close its hospitals or schools, to extradite or sterilize its women, to kill its children, to close its factories, to leave its fields unploughed, or in other ways to expose its population to distress.

Professors Hans Kelsen and Georg Schwarzenberger and Judge Gaetano Morelli of the International Court of Justice (ICJ)

(minority view) insisted that states could not be bound to international norms without their consent and questioned whether state practice reflected any unifying moral consensus rising to the level of international jus cogens.

1945 + (Post-Second World War):

The prosecution of Axis leaders at Nuremburg and Tokyo offered compelling evidence that international law did, indeed, impose substantive limits on the invocation of state sovereignty as a shield for officials accused of crimes against humanity.
States were pledging allegiance to the Universal Declaration of Human Rights and working to constrain state aggression and safeguard human dignity through consent-based multilateral instruments such as the United Nations Charter and the International Covenant on Civil and Political Rights (ICCPR), international judges and scholars were declaring unequivocally that universal norms such as the prohibition against genocide would bind states irrespective of state consent.

1950s and 1960s:

These two strands of the postwar human rights movement—multilateral conventions and peremptory norms—converged in a remarkable way with the United Nations International Law Commission’s (ILC) preparation of the Vienna Convention on the Law of Treaties (VCLT).
1953: ILC’s Special Rapporteur, Sir Hersch Lauterpacht.

advocates for international jus cogens
Lauterpacht submitted for the ILC’s consideration a partial draft convention on treaties which stated that “[a] treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice.”
Acknowledging uncertainty over the scope and content of jus cogens, Lauterpacht asserted that peremptory norms derived their unique legal authority from two interrelated sources— international morality and general principles of state practice.

In Lauterpacht’s view, “overriding principles of international law,” such as the suppression of slavery, “may be regarded as constituting principles of international public policy (ordre international public). These principles . . . may be expressive of rules of international morality so cogent that an international tribunal would consider them forming a part of those principles of law generally recognized by civilized nations which the ICJ is bound to apply [under] its Statute.”
By identifying jus cogens with public policy and general principles of municipal law, Lauterpacht hewed closely to Verdross’s original concern for “immoral” treaties contrary to international public policy.

Lauterpacht’s colleagues on the ILC generally accepted his assessment that certain international norms had attained the status of jus cogens. Yet despite general agreement over the existence of international jus cogens, the ILC was unable to reach a consensus regarding either the theoretical basis for peremptory norms’ legal authority or the proper criteria for identifying peremptory norms.

Several ILC members embraced Lauterpacht’s view that peremptory norms represented minimal rules of international morality or were constitutive of “international public order.”
Most ILC members, however, later joined Sir Humphrey Waldock, the ILC’s fourth special rapporteur on treaty law, in seeking to reconcile jus cogens with the conventional positivist paradigm.

According to Waldock’s formulation, the content of peremptory international law must be ascertained from traditional sources reflecting state consent, whether customary or conventional.

1963: After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”

ILC chose to open the VCLT for ratification without defining with specificity either the theoretical basis of jus cogens or the precise criteria for identifying particular peremptory norms.
Article 53 recognized the existence of international jus cogens by declaring that “[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”

In commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to . . . leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”
To this end, Article 53 stated by way of definition that “a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
In short, while Article 53 affirmed the existence of jus cogens as a corpus of non-derogable international norms, it did not expressly ground these norms in principles of natural law, state consent, public order, or any other theory of legal obligation.
During the VCLT’s ratification process, many states construed Article 53’s focus on “acceptance” and “recognition” as reflecting a consensus-based theory of jus cogens: international norms would not supersede conventional obligations unless recognized as nonderogable “by the international community of States as a whole.”
Moreover, because Article 53 did not identify any particular international norms as nonderogable, states were free to speculate about the provision’s scope and content. Aside from mentioning “the law of the Charter on the use of force” in commentary to Article 50 as “a conspicuous example of a rule in international law having the character of jus cogens,” the ILC deliberately declined to enumerate specific peremptory norms in an effort to avoid “misunderstanding as to the position concerning other cases not mentioned in the article” and “prolonged study of matters which fall outside the scope of the present articles.”
In the end, therefore, the VCLT adopted the general concept of jus cogens without expressly codifying any of the competing foundational theories of peremptory norms in international law.

1980s: VCLT entered into force

The concept of international jus cogens today enjoys widespread acceptance among international publicists and has been discussed with approval by numerous international, regional, and municipal courts.
However, scholarly debates over the nature, scope, and content of peremptory norms—questions deferred during the ILC’s deliberations—remain equally contentious today.

B. Positivist Theories

State Consent:

Justified on grounds that states are independently sovereign and autonomous, and therefore states cannot be bound by norms to which they have not consented.
International norms achieve peremptory status through the same sovereign lawmaking processes that generate ordinary international law

States may consent to peremptory norms by:

codifying the norms in treaties,
accepting them as customary international law, or
employing them domestically as general principles of law

These processes are meant to signal state consent to emerging norms but do not adequately link jus cogens and state consent.

Customary Law:

A leading positivist theory of jus cogens views peremptory norms as customary law that has attained peremptory status through state practice and opinio juris.
Restatement: endorses this position, stating that jus cogens “is now widely accepted . . . as a principle of customary international law (albeit of higher status).”
It bolsters international law’s legitimacy by ensuring that states maintain firm control over the generation and evolution of peremptory norms.

however, it is challenging to reconcile this theory with actual state practice, as states rarely express intent to transform customary norms into peremptory law, and it is unclear what forms of state practice (if any) would support an inference of implied intent.

Treaty Instruments:

The idea that peremptory norms derive their status from treaty instruments is less plausible, as many treaties do not bind non-parties without their consent.
VLCT: does not purport to codify any particular norms as jus cogens, nor does it purport to bind nonparties to its provisions regardless of consent.
ICCPR and Genocide Convention: do incorporate fundamental human rights norms and aspire to universal membership.
State consent to these conventions cannot reasonably be construed to generate peremptory international law applicable to states that have not ratified them.
Ratification of treaties like the Genocide Convention does not imply consent to peremptory norms for non-signatory states.
The mere fact that a multilateral convention codifies international norms is insufficient to identify the norms as peremptory.

General Principles of Law:

Peremptory norms enter international law as “general principles of law recognized by civilized nations.”
These general principles may include procedural maxims such as:

pacta sunt servanda, and
basic individual rights enshrined in municipal constitutions, statutes, and judicial decisions.

For Verdross and Lauterpacht, general principles of law were compelling evidence of a transcendental morality tantamount to international public policy.
In contrast, positivists infer that states implicitly consent to peremptory norms by honoring them as fundamental principles of municipal law.
However, explicit or implicit state acceptance of general principles provides an unstable foundation for a positivist theory of jus cogens.

Few general principles are truly universal across the international community, and the consent of some (or many) states does not explain why states that do not apply particular peremptory norms in their municipal legal systems should be deemed to consent to these norms as a matter of international law.

Consensus Theory:

The requirement of state consent might be satisfied if a representative supermajority of states accepted an emerging norm as peremptory.
Peremptory norms need not achieve universal acceptance to create a binding international consensus, the ILC opines; instead, international norms may claim a consensus of “the international community of States as a whole” if a “very large majority” of representative states accept the norms as nonderogable.
Advocates of this consensus theory typically presume that states signal their consent to peremptory norms through a variety of expressive acts, whether they be unilateral declarations by heads of state, diplomatic correspondence, or the simple failure to register a timely objection to emerging norms.
Thus envisions a new, autonomous mode of general international law formation—a quasi-customary source that is not beholden to state practice or individualized state consent.
It it liberates peremptory norms from customary international law’s persistent objector rule.

Those who embrace consensus theory tend to assume that states consent to the general process by which peremptory norms arise, even if they do not necessarily consent to particular norms generated in that process.
At present, however, there is little evidence that states accept international consensus (or near consensus) as an authoritative process for generating peremptory norms.
Even if states did consent to a consensus-based source of international lawmaking, the positivist paradigm would be ill-equipped to explain why states that disapprove of emerging peremptory norms in the future could not withdraw their consent at will.
Thus, international consensus, like traditional sources of international law, is not particularly well suited to furnish the theoretical underpinnings of jus cogens.

The very concept of jus cogens— peremptory norms that bind states irrespective of state consent—is sharply at odds with the positivist account of international lawmaking. If peremptory norms are to be taken seriously as a source of international obligation, their imperative force must derive from some principle other than state consent.

C. Natural Law Theories

Peremptory Norms as Remnants of Natural Law:

In response to the inadequacy of positivist theories of jus cogens has been to embrace peremptory norms as remnants of the natural law tradition.
Inspired by Lauterpacht’s anti-positivism, a number of commentators have argued that peremptory norms owe their privileged status to their imperative moral authority.

ILC member Mustafa Kamil Yaseen: asserted during the VCLT’s drafting process that “the only possible criterion” for distinguishing peremptory norms from ordinary conventional or customary norms “was the substance of the rule,” including whether the norms were “deeply rooted in the international conscience.”
Louis Henkin and Louis Sohn: suggested that jus cogens norms such as the prohibitions against slavery and military aggression derive their peremptory character from their inherent rational and moral authority rather than state consent; as such, treaties, custom, and general principles might recognize and incorporate peremptory norms, but they could not abrogate them.

Similar affirmations of jus cogens as natural law may be distilled from the jurisprudence of the ICJ and the Inter-American Commission on Human Rights.
Although few international lawyers today share Vattel’s confidence in a universal natural law of reason, many nonetheless agree that “[t]he character of certain norms makes it difficult to portray them as other than peremptory.”

Challenges of Natural Law Theory:

Positivists argue that natural law theories of jus cogens artificially conflate law and morality, confusing parochial and relativistic ethical norms with objective principles of legal right and obligation.
Although some peremptory norms such as the prohibitions against genocide and slavery are relatively uncontroversial across the international community of states, it is by no means clear how natural law theory would resolve disputes over the scope or content of less well-defined norms, such as the prohibition against torture, once jus cogens is uncoupled from state consent.
More troubling still, natural law theory, like legal positivism, struggles to explain how peremptory norms can place substantive limits on state action without eviscerating the concept of state sovereignty.
For these and other reasons, most international courts and publicists of the last half-century have eschewed reliance on natural law in favor of other theories of jus cogens.

D. Public Order Theories

Public Order Norms:

This tradition in international legal theory defines jus cogens as public order norms essential to the integrity of international law as a legal system.
International law recognizes certain imperative norms as hierarchically superior to ordinary conventional and customary law in order to promote the interests of the international community as a whole and preserve international law’s core values against fragmentation.

Ethical basis: International law has its roots in the ethics of a particular community and cannot be separated from its moral foundation.

According to public order theories of jus cogens, all peremptory norms serve one of two functions:

they either safeguard the peaceful coexistence of states as a community or
honor the international system’s core normative commitments.

Erga omnes:

Insofar as public order theory envisions jus cogens violations as offenses against the international community as a whole, this approach places peremptory norms in close proximity to erga omnes rules—offenses that give rise to generalized state standing.
The ICJ famously endorsed the erga omnes concept in Barcelona Traction when it affirmed states’ responsibility to refrain from “acts of aggression, and of genocide,” and to observe “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination” and characterized these norms as “obligations of a State to the international community as a whole.”
While superficially appealing, the ICJ’s attempt to frame peremptory norms as duties owed by states to the international community as a whole poses significant conceptual difficulties of its own: In what sense does the international community suffer an injury when a state subjects its own nationals to slavery or racial discrimination? As the ICJ acknowledged in a different context, where fundamental human rights are at stake “one cannot speak of individual advantages or disadvantages to States.”
By the same logic, it is unclear why the international community as a whole could claim a more particularized interest in intrastate human rights observance than either its constituent member states or the people who reside within them.
(A/N) The theory faces challenges in explaining how the international community as a whole is injured when a state violates certain norms, such as racial discrimination or slavery. It raises questions about why the international community would have a more specific interest in intrastate human rights observance compared to member states or individuals.

Public order theory’s best response to this dilemma has been to recast peremptory norms as principles integral to the normative objectives of international law and constitutive of the international community itself.
Myers McDougal, Harold Lasswell, Michael Reisman, and others: argued persuasively that jus cogens norms such as the prohibitions against acts of aggression and racial discrimination reflect international law’s transformation into a purposeful global community of conscience dedicated to promoting human rights and the peaceful coexistence of states.

As evidence of this normative agenda, public order theorists point to instruments such as the Charter of the United Nations, which defines the United Nations’s objectives to include the promotion of “international peace and security,” “friendly relations among nations,” “human rights,” and “fundamental freedoms.”
When one considers the international community’s overwhelming acceptance of the United Nations’s mission, the notion that peremptory norms constitute international public policy is not farfetched.
Advocates of public order theory argue that peremptory norms are integral to the normative objectives of international law and define the international community itself. They see peremptory norms as promoting human rights and peaceful coexistence, reflecting the global community's commitment to these values.

Limitations of Public Order Theory:

Public order’s insight that peremptory norms shapeand define international law’s normative agenda does not, in and of itself, yield a promising positive or prescriptive theory of jus cogens.
Public order theory does not illuminate the normative basis of peremptory norms, nor does it clarify which particular international norms should be deemed peremptory.
When confronting these critical questions concerning the nature and content of peremptory norms, advocates of public order theory either retreat to circular reasoning about peremptory norms’ indispensability to international society or recycle arguments from legal positivism or natural law theory.

Equally disconcerting, public order theory—like positivism and natural law theory—does not address the enduring paradox at the core of human rights discourse: international law’s seemingly contradictory commitments to state sovereignty and individual dignity. To answer these critical questions, international legal theory must look beyond the alleged requirements of public order.

III. THE NEW POPULAR SOVEREIGNTY: FIDUCIARY STATES IN INTERNATIONAL LAW

A. Fiduciary Relationships and the State as Fiduciary

Types of Fiduciary Relationships:

Familiar fiduciary relationships include:

trustee-beneficiary
agent-principal
director/officer-corporation
lawyer-client
doctor-patient
partner-partnership
joint venturer-joint venture
parent-child, and
guardian-ward.

Definition of Fiduciary Relationships:

Fiduciary relationships arise when one party (the fiduciary) holds discretionary power of an administrative nature over the legal or practical interests of another party (the beneficiary), and the beneficiary is peculiarly vulnerable to the fiduciary’s power in the sense that she is unable, either as a matter of fact or law, to exercise the entrusted power.

Characteristics of Discretionary Power of An Administrative Nature:

Discretionary power of an administrative nature is other-regarding, purposive, and institutional.
It is not self-regarding, is held for limited purposes, and must be within a legally permissible institution.

Beneficiary Vulnerability:

Beneficiaries are peculiarly vulnerable in that, once in a fiduciary relationship, they generally are unable to protect themselves or their entrusted interests against an abuse of fiduciary power.
In many fiduciary relationships of private law (e.g., lawyer-client, doctor-patient, agent-principal), the fiduciary is a person to whom the beneficiary has turned for professional services or advice.

Duty of Fiduciary:

The fiduciary is empowered to act on the beneficiary’s behalf, and the things she is empowered to do for the beneficiary (e.g., defend a suit, tend an injury, sign a contract) are things the beneficiary is legally entitled to do for herself.
In other fiduciary relationships, however, the beneficiary’s vulnerability is of a different kind because the beneficiary cannot in principle exercise the kind of power the fiduciary is entrusted to exercise.

State as a Fiduciary:

The idea that the state is in a fiduciary relationship with its people traces its origins to the republican idea of popular sovereignty that rose to prominence in the seventeeth century during the English Civil War, and is reflected in constitutional documents such as the 1776 Pennsylvania Declaration of Rights: “[A]ll power being . . . derived from the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.”
Long before the United States’s struggle for independence, Locke had famously asserted that legislative power is “only a fiduciary power to act for certain ends” and that “there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them.”
In other words, popular sovereignty denotes that the state’s sovereign powers belong to the people, and so those powers are held in trust by their rulers on condition that they be used for the people’s benefit. Popular sovereignty thus implies that the state and its institutions are fiduciaries of the people, for their justification rests exclusively on the authority they enjoy to govern and serve the people. As we shall see, the fiduciary theory explains the state’s legal authority to announce and enforce law for the benefit of the people, while simultaneously explaining limits intrinsic to state authority, such as peremptory norms.
1600s: With the Peace of Westphalia and the emergence of autonomous states, the prevailing view of international order was that, as between European powers, there was no law, but rather a Hobbesian state of nature.

Nonetheless, for more than 400 years these powers pressed the fiduciary theory of the state into ideological service as they sought to extend European sovereignty over non-Europeans and their lands.
Spanish theologian Francisco de Vitoria, who generally defended the interests of indigenous peoples against Spanish conquest, claimed that indigenous peoples were essentially children incapable of self-government. Therefore, they were susceptible to a purportedly civilizing European trusteeship, albeit one that could exist only provisionally and for the benefit of the colonized peoples.
With a like sympathy for Indians subject to British rule, Edmund Burke deployed the fiduciary theory from within the colonial paradigm to argue that the East India Company had breached the trust-like authority Parliament had given it over India, and that the governing powers ceded to the Company therefore reverted back to Parliament (not to India).

1900s: In the interwar period, the Mandate System established by the League of Nations formally entrenched the colonial trusteeship ideas of Vitoria and Burke.

Article 22 of the Covenant of the League of Nations stipulated in part that the mandate states (former territories of Germany and the Ottoman Empire) were “not yet able to stand by themselves,” and that their well-being fell to the League as a “sacred trust of civilization.”
The mandatories owed duties of good governance to both the international community (the League of Nations) and their subject wards, which in theory were to be groomed for self-rule.
Although the League of Nations eventually dissolved, the system continued in diminished form after World War II under the United Nations Trusteeship System and has on occasion supplied a means of redress to trust territories.

Historical Use of Fiduciary Theory:

The historical record appears to suggest that fiduciary doctrine enabled colonialism by lending it a veneer of legality.
However, the wrongfulness of colonialism lies not in the trust-like structure of colonial rule per se, but in colonialism itself, i.e., in the prior denial of the colonized peoples’ ability to govern themselves.

Postcolonial Perspective:

In a postcolonial world in which the fiduciary theory is wedded inextricably to popular sovereignty, the theory underscores rather than subverts the idea that public power ultimately belongs to the people. D
Disabused of its colonial past and already open to a fiduciary vision of public authority, international law may now be ready to make good on the democratic and republican promise of popular sovereignty that the fiduciary conception of the state makes possible.

State’s Fiduciary Obligation:

The state’s legislative, judicial, and executive branches all assume discretionary power of an administrative nature over the people affected by its power.

For example, the state assumes discretionary authority to announce and enforce law over everyone within its jurisdiction.
The legislative, executive, and judicial powers entailed by sovereignty, in their own familiar ways, exhibit the institutional, purpose-laden, and other-regarding characteristics that constitute administration.
Moreover, legal subjects, as private parties, are not entitled to exercise public powers. For this reason, legal subjects are peculiarly vulnerable to public authority, notwithstanding their ability within democracies to participate in democratic processes and assume public offices. It follows that the state’s sovereign powers—discretionary powers of an administrative nature that private parties are not entitled to exercise—give rise to a fiduciary obligation.

To understand the normative basis of the state’s fiduciary obligation, a general theory of fiduciary relations is needed, which explains the moral basis of the beneficiary’s right to the fiduciary’s duty.

B. Kant’s Model of Fiduciary Relations

Kant sets out the requisite moral basis for fiduciary obligation in an argument concerning the duties that parents owe their children, duties that arise as a consequence of a particular unilateral undertaking on the part of the parents.

Innate Right:

For Kant, legal rights embody our moral capacity for putting others under legal obligations.
Kant refers to property and contractual entitlements as acquired rights, because some act is required on the part of the right-holder for her to acquire them.
An innate right, on the other hand, “is that which belongs to everyone by nature, independently of any act that would establish a right.”
All rights at private law, for Kant, are either innate or acquired. Moreover, persons have one, and only one, innate right, which each possesses equally by virtue of his shared humanity—that is, the right to as much freedom as can coexist with the freedom of everyone else.

Freedom, Kant explains, is simply “independence from being constrained by another’s choice.”
More positively, freedom is the agent’s capacity for rational self-determination.

It follows that in a world where interaction with others is unavoidable, law must enshrine rights within a regime of equal freedom in which no party can unilaterally impose the terms of interaction on another.

With these precepts in mind, consider Kant’s claim that children have an innate and legal right to their parents’ care.

It is easy to see that the child’s right cannot be an acquired right, since the child does nothing to acquire it. She is simply born.
The part that needs further clarification is how the child’s innate right to equal freedom can place the parents under a legal obligation.
Although strangers have the same innate right to equal freedom as the child, parents owe them none of the special legal duties that they owe their children.

To establish the necessary connection between parent and child, Kant points to the act of procreation, an act that brings a helpless and vulnerable child into the world without the child’s consent.

For Kant, the parent’s obligation takes hold in the first instance because no party can unilaterally impose terms of interaction on another.
When parents unilaterally create a person who cannot survive without their support, the child’s innate moral capacity to place the parents under obligation is triggered to ensure the child’s security.
Parents’ freedom to procreate can thus coexist with the child’s right to security from the perils of a condition to which she never consented.
The child is treated as a person worthy of respect in her own right, and not as a thing the parents can destroy or abandon.
The parents have brought into being a person who is a “citizen of the world,” and one implication of citizenship in Kant’s world of equal freedom is recognition and affirmation of the child-citizen’s innate moral capacity to put her parents under obligation.

As persons, children cannot be treated as mere means or objects of their parents’ freedom to procreate. Rather, they are beings who by virtue of their moral personhood have dignity, and dignity proscribes regarding them as if they were things.

By the same token, legal personality and the idea of dignity intrinsic to it supplies the moral basis of the beneficiary’s right to the fiduciary obligation.

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 his position to set unilaterally the terms of his relationship with the beneficiary.
The fiduciary principle renders the beneficiary’s entrusted interests immune to the fiduciary’s appropriation because those interests, in the context of fiduciary relations, are treated as inviolate embodiments of the beneficiary’s dignity as a person.

In other words, 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, these limitations include jus cogens norms, and as we argue now, their fiduciary basis explains both their juridical nature and peremptory status.

C. Fiduciary States and the Prohibitions Against Slavery and Discrimination

Kant’s model of fiduciary relations provides a powerful framework for reconceptualizing both the state-subject relationship and the concept of jus cogens.
Applying the fiduciary principle, states are no more at liberty to deny jus cogens than parents are at liberty to deny the fiduciary obligations that accompany parenthood.

While of course a state’s adult subjects are not children, and ought not to be treated like children, there is an important sense in which the state-subject relationship resembles parent-child relations: in both cases there is involuntary subjection to proclaimed authority.

G.E.M. Anscombe: with both parental and governmental authority, “[y]ou find yourself the subject of these whether you like it or not.

Thus, if the state, like the parent, is subject to fiduciary obligations, and if those obligations include the norms of jus cogens, then they bind the state peremptorily and independently of anything the state may do or say to deny them.

Article 53 of VCLT: A further corollary of the fiduciary model is that the whole of Article 53 of the VCLT is superfluous.

States are bound by jus cogens whether they have ratified the VCLT or not and irrespective of whether Article 53 has the status of customary international law.
Therefore, even states that have not ratified the VCLT are barred from concluding treaties that violate peremptory norms.
Article 53 makes no difference to states’ obligation to refrain from entering treaties that violate jus cogens.

To see by way of illustration how jus cogens norms might flow from the fiduciary model of the state, consider the peremptory prohibition against slavery.

Let us assume that there is a state-subject fiduciary relationship, and that the fiduciary principle authorizes the state to secure legal order on behalf of every agent subject to state power. At a minimum, establishing legal order on behalf of every agent entails that each must have the possibility of acquiring rights that can enshrine and protect his respective interests; otherwise, such interests would be entirely vulnerable to the power and caprice of others.
In other words, each agent must be treated as a person because each agent is an equally valid subject of the fiduciary authorisation of public authority.

As a principle of legality, the fiduciary principle must treat like cases alike.
Thus, the fiduciary principle has no capacity to discriminate arbitrarily between agents who, in virtue of the state-subject fiduciary relationship, enjoy equal status vis-à-vis the state as co-beneficiaries of the fiduciary principle’s authorization of public authority.

Because slaves are denied the capacity to possess legal rights, a state that enforces slavery cannot claim to have secured legal order for the purpose of guaranteeing rights on behalf of each agent.

It follows that if a state supports slavery, it does so in contravention of 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.
Since the fiduciary principle necessarily treats like cases alike and therefore regards every individual as an equal co-beneficiary of legal order, the fiduciary state must provide for every individual’s secure and equal freedom.

As a consequence, the fiduciary state is duty-bound to protect every individual against all forms of arbitrary discrimination (such as apartheid), and not just slavery.

Moreover, the duty is a binding legal duty, and thus juridical in nature, because fiduciary duties are legal duties.

As we shall now see, the ultimate basis of jus cogens rests within the very concept that tends to be pitted against it: sovereignty.

D. The Fiduciary Constitution of Sovereignty

Sovereignty

Sovereignty is traditionally understood in international law as the legal authority of a state to rule and represent a given population within a given territory.
As noted above, the fiduciary model respects the demands of popular sovereignty by acknowledging the people’s dominion over the state’s sovereign powers, and the resulting fiduciary position of the state vis-à-vis the people.
A plausible political implication of combining the fiduciary model with popular sovereignty is democracy, since democracy permits the people to elect and dismiss those who wield state power.
The novelty of the theory we propose, however, is that the state-subject fiduciary relationship, properly understood, is a legal as well as a political relationship, and thus it has legal consequences, such as the emergence of peremptory norms constitutive of a new popular sovereignty.
This conception of popular sovereignty is new in the sense that it yields specific legal obligations to which all states are subject strictly by virtue of the sovereign powers they possess. Consider now the relationship between this new popular sovereignty and international law’s recognition of claims to sovereignty.

Criticisms

Patrick Macklem: argues compellingly that sovereignty does not simply exist, as a matter of brute fact, but rather international law distributes it to some legal actors (sovereign states) and not to others.

For international as opposed to national law, sovereignty “comes from above, from international law itself,” because international law alone can “shape an international political reality into an international legal order by determining the legality of multiple claims of sovereign power.”
Macklem observes that, although international law does not recognize every plausible claim to sovereignty (e.g., the claims of indigenous peoples), it does protect the territorial integrity of “a state whose government represents the whole of its population within its territory consistent with principles of equality, nondiscrimination, and self-determination.”
International law may also confer statehood on a “people” that has suffered protracted colonial rule, and likewise sovereignty may arise as a matter of international law if a sufficient number of states recognize the sovereign status of the claimant state.
In short, Macklem contends that while international human rights law properly seeks to regulate the exercise of sovereign power, this body of law should also regulate the distribution of sovereign power with an eye to mitigating the historical injustices for which international law is partially to blame, such as the denial of sovereignty to indigenous peoples.

The fiduciary theory provides a unifying theoretical framework for sovereignty congenial to both the distributive and power-controlling projects of international human rights law.

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.
We have seen already in the case of slavery that implicit within the fiduciary authorization of state power is a requirement that the state treat each person as an equal co-beneficiary of legal order. This requirement explains the leading criterion that Macklem identifies as regulating the distribution of sovereignty—namely, the principle that a government must represent “the whole of its population within its territory consistent with principles of equality, nondiscrimination, and self-determination.”
Thus, the fiduciary principle provides a unified standard of authorization that permits critical scrutiny and regulation of both the international distribution and domestic exercise of sovereign powers.

E. Why Not Kant’s Social Contract?

Within the state-subject fiduciary relationship, jus cogens norms are constitutive of a new conception of popular sovereignty precisely because they embody legal limits on state power arising from the fiduciary principle.
This fiduciary theory lays a better foundation for jus cogens (and human rights law generally) than Kant’s social contract theory.

Kant believed that the state derived its legitimacy from a contract that we each must be understood to make with each other to form a Rousseauian “general will.”
Through our agreement and the general will, Kant claimed, we jointly authorize the state to announce and enforce law. Kant did not think that people actually contracted with one another to set up the state through referenda or any other such means.
Rather, he claimed that we are under an obligation to agree to leave the state of nature to render our rights determinate and secure.
Even on the rosy assumption of some mutual recognition of provisional rights in the state of nature, “when rights are in dispute (ius controversum), there would be no judge competent to render a verdict having rightful force.”
Individuals must therefore agree to enter civil society because, as Arthur Ripstein puts it, “they cannot object to being forced to accept those procedures [that would make right possible], because any objection would be nothing more than an assertion of the right to use force . . . unilaterally.”

But we do not need to subscribe to a social contract to recognize the force of the principle that no one is entitled to impose terms unilaterally on others, and therefore that no one is entitled to be judge and party to the same cause.

This principle of impartiality stands on its own, as Hobbes made clear in Leviathan almost 150 years before Kant.
Once the principle of impartiality is established, we can explain the need for the state, and given its fiduciary relationship to the people, we can explain its obligation to comply with jus cogens.
Nothing is added by supposing that the people must consent to the state, since whether they must consent or not makes no difference to the state’s authority and obligation to establish legal order on their behalf. It is enough that the state possesses irresistible administrative power over its subjects, that they depend on the state’s proper exercise of its powers for the provision of legal order, and that they—as private parties—are not entitled to exercise public authority.
With these assumptions in place, the fiduciary principle demands legal order of political sovereignty, a significant aspect of which is jus cogens.

A final reason to prefer the fiduciary theory to the social contract account of the state relates to cosmopolitan citizenship, Kant’s idea that an individual is a “citizen of the world” and therefore enjoys some rights vis-à-vis all states.

Kant’s own view of cosmopolitan citizenship was somewhat thin: states owe strangers hospitality, a right of temporary passage.
Kant did not think that the original contract to form the state grounded cosmopolitan citizenship, and it is hard to imagine how it could, since members of states would lack privity of contract with nonmembers. The fiduciary theory of the state, however, lets us explain how jus cogens norms constitute a universal bill of cosmopolitan human rights.
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 non-subjects enshrined under jus cogens.

Of course, sovereign states are not the only entities that may assume the fiduciary obligations associated with public governance. In many areas of the world, nonstate actors have exercised powers of unilateral public administration comparable to the sovereign powers of conventional states.

Examples include such varied institutions as the U.N. Interim Administration for East Timor, the Palestinian Authority, Hezbollah, and the State of New York.
That the international community does not recognize these entities as full-fledged sovereign states does not render the fiduciary principle inapplicable to them, for it is an entity’s assumption of state powers, not de jure statehood per se, that triggers the fiduciary principle.
Any entity that assumes unilateral administrative power over individuals bears a fiduciary obligation to honor the basic demands of dignity, including the peremptory norms of international jus cogens.

In explaining the relationship between peremptory norms and state sovereignty, human rights advocates such as Reisman and Tesón begin with the assumption that such rights are universal, and infer without much argument that all states must respect them.

The fiduciary theory provides a substantive argument that runs in just the opposite direction: all states by their very nature are in a fiduciary relationship with everyone subject to their power, and therefore all states must respect the human rights of their subjects.
The universality of human rights is the conclusion rather than the premise of the fiduciary argument.
The fiduciary theory thus explains the universal character of human rights through the universal obligation of states to respect them, aspects of human rights law that Tesón and Reisman present as articles of faith.

Peremptory norms in international law arise from the state-subject fiduciary relationship. It is time now to consider the general criteria for the specification of jus cogens norms that emerge from the fiduciary model and the extent to which currently accepted jus cogens norms satisfy these criteria. The fiduciary theory points to formal and substantive criteria that together establish an analytical framework of necessary and sufficient conditions capable of identifying such norms.

IV. FIDUCIARY STATES AND PEREMPTORY NORMS

A. Criteria for Identifying Peremptory Norms

Formal and Substantive Criteria:

Formal criteria 一 condition the form such norms must adopt
Substantive criteria 一 constitute the substantive aspect of peremptory norms which flow from the fiduciary position of the state.

Seven Formal Criteria:

Seven formal criteria, borrowed from Lon Fuller’s internal morality of law, which legal norms should aspire to satisfy irrespective of their substantive aims:

Peremptory norms must embody general and universalizable principles.
These norms must be public, so states can know and adapt their policies accordingly.
Compliance with jus cogens norms must be feasible; they cannot demand the impossible.
The subject matter of the norm should be clear and unequivocal.
Peremptory norms should be internally consistent and consistent with the wider set of jus cogens norms.
Jus cogens norms should be prospective rather than retroactive in nature.
The set of peremptory norms should remain relatively stable over time.

Purpose of Formal Criteria:

These criteria flow from the fiduciary conception of the state because they enable the state to act as a faithful fiduciary.
Norms that flagrantly violate any of these principles would either frustrate the state’s fiduciary mission or simply fail to enable it to establish legal order, and therefore they would lack any justification from the point of view of the fiduciary model.

Not Sufficient Conditions:

That the formal criteria are necessary does not mean that they constitute sufficient conditions for jus cogens.
Nor are the formal criteria necessary in the strong sense that it is logically impossible for a jus cogens norm to exist if it infringes to any degree whatsoever one of the formal criteria.
Peremptory norms will typically assume the general form of principles, and in some cases (e.g., torture) their precise meaning may be controversial.
Moreover, they may satisfy the formal criteria without achieving a degree of clarity and determinacy that would prescribe the precise legal consequences of their violation.
Considerations of this sort led Fuller to conclude that his internal morality of law was a morality of aspiration rather than strict legal duty, since the achievement of clarity or feasibility, for example, will typically be a matter of degree.

Necessary Conditions in a Weaker Sense:

The formal criteria establish necessary conditions in the weaker sense that a norm’s flagrant infringement of any single criterion will undermine the norm’s fiduciary justification by subverting the state’s ability to comply with it.
In other words, the formal criteria are necessary in the sense that they lay down formal desiderata with which peremptory norms must generally comply in order to meet the demands of the fiduciary model.

Substantive criterions:

Integrity:

Peremptory norms must have as their object the good of the people rather than the good of the state’s officials.
This criterion eliminates formally adequate norms that would permit public officials to self-deal, such as “maximize the wealth of state officials.”

Formal Moral Equality:

Peremptory norms must treat persons as moral equals.
This principle is formal in the sense that it alone does not require any particular action of the state, but rather demands fairness as between individuals whenever the state does act.

On a strict interpretation, state officials would satisfy this principle if they looked on and did nothing while an ocean liner sank with scores of their citizens aboard. They would violate the principle if they attempted rescue but their rescue efforts gave preference to certain racial or ethnic groups.

Solicitude:

Peremptory norms must be solicitous of the legal subject’s legitimate interests.
Whereas the principle of integrity prohibits self-dealing on the part of officials, and the principle of formal moral equality requires even-handedness, the principle of solicitude demands that the state take seriously the legitimate interests of its subjects.

The problem is that the formal and substantive criteria enumerated thus far, even when taken collectively, do not provide a basis for distinguishing peremptory from non-peremptory norms.

The three substantive criteria discussed above arise from the general character of the fiduciary principle’s authorization of state power and the general content of the state’s fiduciary obligation to the people (the duties of fairness and reasonableness).

Fundamental Equal Security:

This principle arises from the fiduciary model’s obligation to secure legal order.
Norms that are indispensable to the fundamental and equal security of individuals qualify as peremptory norms.

Because the fiduciary state is under an obligation to guarantee fundamental and equal security, it is likewise under an obligation to respect the norms that are indispensable to it.
And, because respect for such norms is indispensable to the state’s performance of its fiduciary obligation to secure legal order, the state cannot derogate from them.
Thus, the principle of fundamental equal security that flows from the fiduciary model lets us distinguish non-derogable from derogable norms, and thereby supplies a sufficient condition to the many necessary conditions that have preceded it.
The principle supplies a sufficient but not a necessary condition because, as we shall see now, implicit within the state’s obligation to secure legal order is another independently sufficient condition for the identification of peremptory norms: the rule of law.

Rule of Law

A norm will count as jus cogens if respect for it is indispensable to the state’s ability to secure legality for the benefit of all
As the ICCPR and the European Convention make clear, even in states of emergency in which the state’s very existence as such is threatened, it cannot opt out of legality altogether.
A state cannot jettison core components of the rule of law and maintain its fiduciary credentials, and thus those core components are sufficient conditions of peremptory norms.
Some core components of the rule of law might include Fuller’s principle that all state action must have a legal basis, judicial independence, impartial adjudication, and the principle that no one may be punished except in accordance with a previously declared penal law.

Table 1. Criteria for Specifying Peremptory Norms

Specific Jus Cogens Criteria	Character	Constitutive Property
Generality	Formal	Necessary
Publicity	Formal	Necessary
Feasibility	Formal	Necessary
Clarity	Formal	Necessary
Clarity	Formal	Necessary
Prospectivity	Formal	Necessary
Stability	Formal	Necessary
Integrity	Substantive	Necessary
Formal moral equality	Substantive	Necessary
Solicitude	Substantive	Necessary
Fundamental equal security	Substantive	Sufficient
Rule of law	Substantive	Sufficient

B. Recognized Peremptory Norms

Cataloging Jus Cogens Norms:

Various attempts have been made to catalog peremptory norms, although none have been definitive.
The Restatement serves as an influential reference point and lists seven categories of norms as illustrations of international jus cogens.

Alignment with Fiduciary Theory:

Notably, each of the well-established international norms in the Restatement aligns with the fiduciary theory of jus cogens.
These norms include:

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
principles of the United Nations Charter prohibiting the use of force.

Equality and Freedom:

The prohibitions against slavery and racial discrimination resonate with the fiduciary theory’s concept of individuals as equal co-beneficiaries of state actions.
States that engage in arbitrary discrimination or deny equal freedom under the law violate the fiduciary principle and, consequently, their claim to sovereignty.

Broader Application:

The fiduciary principle extends beyond these specific norms to encompass state practices that violate individuals’ moral dignity.
States must refrain from exploiting their subjects as mere instruments of state policy or obstacles to state interests.
The principle of equal security, which prevents states from exploiting individuals for their ends, prohibits grave offenses such as:

genocide
crimes against humanity
summary executions
torture
forced disappearances
prolonged arbitrary detention

Such flagrant abuses of state power deny a state’s beneficiaries secure and equal freedom and therefore trigger international law’s strictest peremptory prohibitions.

The fiduciary theory thus confirms the conventional wisdom that certain grievous abuses of state power are universally prohibited as a matter of jus cogens. These mandatory and non-derogable norms do not owe their peremptory status to state consent; rather, they demarcate the outer limits of the fiduciary state’s legal authority.

C. Emerging Peremptory Norms

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 of Human Rights 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.
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, and a few scholars have asserted that due process should be recognized as a peremptory norm.
The fiduciary theory strongly supports classifying due process as a peremptory norm. A state transgresses its general fiduciary duties of fairness and solicitude 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.
Indeed, however one defines the state’s specific duty to promote public security under the rule of law, this duty must, at a minimum, require adherence to basic principles of procedural fairness.
What due process demands in a particular proceeding will turn upon contextual factors, though some basic features of a fair hearing are clearly indispensable in all cases, such as the need for an impartial adjudicator. These 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.

Public Corruption:

The international norm against state corruption has received even less attention as a candidate for peremptory status.
This oversight cannot be explained away on the grounds that public corruption is a lesser evil than other grave abuses of state power.
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 the 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.
Recognizing the norm against public corruption as a peremptory norm illuminates an important feature of jus cogens itself. 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 the important principle that the scope of jus cogens is not limited exclusively 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.

Self-Determination:

Unlike due process and public corruption, the right to self-determination of peoples has attracted a great deal of attention and controversy as a potential peremptory norm.
Generally speaking, international law recognizes the right of peoples to full political participation and cultural identity within an independent and autonomous state that honors their fundamental rights and freedoms—even if, for various reasons, peoples might not succeed in acquiring independence from their state of residence.
This general principle operates today along two dimensions: “external” self-determination and “internal” self-determination.

External self-determination

provides that national groups have a right to freedom from colonial domination—to “freely determine their political status and freely pursue their economic, social and cultural development.”
The right to external self-determination flows naturally from the fiduciary foundations of state authority.

As we have seen, a state cannot use force for the purpose of subjecting another state to its control without implicitly failing to treat foreign nationals as equal moral agents.
By the same token, a group’s claim to independence from external domination is a derivative of individuals’ entitlement to secure and equal liberty as citizens of the world. Colonial domination frustrates the liberty of individuals to self-organize into a political community governed by laws responsive to their interests. Like the prohibition against military aggression, the anticolonial right to external self-determination seeks to guarantee individuals’ secure and equal freedom by providing for their self-rule.

Internal self-determination

requires, at a minimum, that they enjoy full and equal participation in the processes of representative self-governance.
Internal self-determination has proven to be more politically and theoretically divisive than external self-determination, as it has been invoked in support of diverse subnational and transnational independence movements, as well as indigenous peoples’ claims to political autonomy and control over resources.
We need not canvass all of the possible conceptions or applications of internal self-determination, however, to recognize that certain norms commonly associated with the principle qualify as jus cogens under the fiduciary theory.
At a minimum, a state cannot reasonably claim to honor its fiduciary obligations if it arbitrarily denies a discrete group of its nationals the opportunity to participate equally in national politics or withholds other critical rights or privileges of nationality.
In addition, some municipal courts have held that states are in a fiduciary relationship with indigenous peoples, and that states must consult with indigenous peoples and seek to accommodate their concerns if proposed state action will infringe their rights.
International law also supports indigenous self-determination and a duty to consult.
Violation of these kinds of autonomy-enabling rights would breach obligations that many states now recognize as fiduciary in character. Insofar as the principle of internal self-determination addresses these or other constitutive concerns of the state-subject fiduciary relation, it deserves to be accorded peremptory force within international law.

D. Nonperemptory Norms

By specifying criteria for identifying peremptory norms, the fiduciary theory also offers a principled framework for distinguishing norms that do not qualify as jus cogens.

To merit recognition as jus cogens, it is not enough for a norm to achieve widespread state acceptance or preserve orderly relations between states.
Rather, the norm must satisfy the fiduciary theory’s formal and substantive criteria, which limit jus cogens to formally satisfactory norms that are constitutive of the state-subject fiduciary relation.
Guided by these concerns, the fiduciary theory’s analytical framework eliminates from consideration a variety of international norms, which courts and commentators occasionally mischaracterize as jus cogens.

Some scholars have suggested, for example, that well-accepted maxims of international treaty law such as pacta sunt servanda, or general principles of international jurisdiction such as the territorial principle, should be recognized as jus cogens.

The rationale for including these norms is that they have achieved widespread acceptance across the international community and are constitutive of international law as a legal system.
The fiduciary theory counsels a different result.
The mere fact that certain norms are well entrenched within international law is insufficient to distinguish them as jus cogens.

To be sure, most well-recognized peremptory norms such as the prohibitions against slavery, genocide, and military aggression would retain their non-derogable status under the fiduciary theory of jus cogens.

E. Possible Objections to the Fiduciary Theory

Positivist Critique:

Positivists may criticize the fiduciary theory for decoupling peremptory norms from state consent without specifying an institution responsible for generating, modifying, or interpreting these norms.
However, the theory argues that peremptory norms are inherent to the state-subject fiduciary relationship, deriving their non-derogable status from moral demands rather than state or non-state actor will.
While states have a role in operationalizing peremptory norms, international organizations like the UN may assist in determining norm violations, but the norm’s basis remains the fiduciary relationship, not international consensus.

Undermining Treaties and Customary Law:

Critics might argue that the fiduciary theory diminishes the significance of treaties and customary international law by making them less relevant to international human rights law.
However, the theory does not undermine these sources but relies on them for specifying norms that meet its criteria.
Multilateral treaties have contributed to generating human rights guarantees implementing the broader jus cogens norms derived from the fiduciary theory.
Treaties will continue to serve as crucial tools for coordinating responses to violations of peremptory norms.

Treatment of Nonstate Actors:

Some may object to the fiduciary theory’s focus on state actors, arguing that it undervalues norms targeting nonstate actors such as terrorists, corporate polluters, or domestic violence perpetrators.
The theory does not establish a hierarchy among international norms based on intrinsic importance. Instead, it distinguishes peremptory norms by their role as fiduciary constraints on state power, leaving room for addressing nonstate actor abuses through separate norms.
The theory does not preclude the possibility of specifying peremptory norms in the future to address nonstate actor abuses.

Cultural Diversity Concerns:

Critics might contend that the concept of jus cogens reflects Western bias and disregards cultural diversity.
However, the fiduciary theory limits jus cogens to norms representing common public values like integrity, fairness, and solicitude.
It has historical and cultural roots beyond the Western tradition, including influences from Islamic and Confucian legal traditions.
While it may challenge deeply entrenched cultural values in some regions, it is less susceptible to cultural relativism concerns compared to other theories of jus cogens.
The principle of popular sovereignty, on which the theory is based, is widely embraced in the international community, making it less vulnerable to charges of Western-centric ideology.

V. FUTURE AVENUES OF INQUIRY

A. Cosmopolitan Citizenship

The fiduciary model introduces the concept of cosmopolitan citizenship in response to abuses of state power both within and beyond a state’s borders.
It argues that individuals, regardless of their nationality, possess innate rights to protection under basic human rights against the authority of any state.
This implies that states have no greater entitlement to mistreat foreign nationals than they do concerning their own citizens.

Recognizing peremptory norms as constitutive of cosmopolitan citizenship has several implications:

Due Process for Detained Foreign Nationals:

The fiduciary model asserts that detained foreign nationals, even when apprehended and held extraterritorially, are entitled to due process rights.
Instead of debating whether they have such rights, scholars should focus on defining the scope of due process for foreign detainees, especially in cases involving national security concerns.

Geneva Conventions and Humanitarian Law:

The model suggests that the Geneva Conventions and humanitarian law are strong candidates for jus cogens status.
This is because respect for these conventions is essential for equal security, even in times of war. Such peremptory norms can be distinguished using the fiduciary theory’s criteria.

Refugee Convention and Hospitality:

The fiduciary theory sheds light on the 1951 Refugee Convention, framing it as a formalization of a fiduciary duty of hospitality that states owe to individuals arriving at their borders without a recognized nationality.

Treatment of Nationals vs. Nonnationals:

The model does not necessarily eliminate the distinction between citizens and denizens but emphasizes the importance of human rights.
While foreign nationals may not enjoy all political rights held by citizens, their human rights should be equally respected. This concept suggests that citizenship rights must accommodate human rights, as human rights are constitutive of state sovereignty.

B. The Fiduciary Character of International Order

The fiduciary character of international order implies that the international community, much like a surrogate guarantor, may act to protect individuals when states blatantly violate peremptory norms.
This view is based on the fiduciary principle's aim to uphold an individual's innate right to equal dignity.
If a state fails in its fiduciary duty to treat individuals with such dignity, the international community must step in, as peremptory norms are essential for the international legal order and are rooted in the dignity of the person.

This fiduciary aspect of international order has various implications:

Transitional Administrations:

The international community, particularly through the United Nations, can establish transitional administrations to help transitional states in building democratic and legal institutions that reflect the sovereignty of their people.

Disaster Relief and Poverty Alleviation:

The fiduciary nature of international order might require the international community to provide disaster relief, famine assistance, and address life-threatening poverty, aligning with distributive principles in international human rights law.

Humanitarian Intervention:

In extreme cases where states systematically violate peremptory norms, the fiduciary structure of international order may justify humanitarian intervention.
However, it remains less clear whether the fiduciary principle would authorize individual states to unilaterally engage in humanitarian intervention.

C. The State as Agent

The state must represent its people and act on their behalf as their agent.
This obligation opens up additional lines of inquiry that a number of commentators have already begun to explore.
For example, state officials cannot acquire public debts to enrich themselves, and plausibly creditor states that lend money to corrupt governments with actual or constructive knowledge of their corruption are not entitled to collect these odious debts.
Yet another implication of the state’s fiduciary position as agent is that it cannot delegate or contract out essential fiduciary obligations of statehood (e.g., the state’s duties to guarantee equal security and the rule of law) without providing adequate safeguards to those affected by the delegated powers.
Fruitful future inquiry could elaborate on the content of these safeguards in various contexts such as extradition and state delegation to military contractors.

D. Peremptory Norms and Obligations Erga Omnes

A further implication of the fiduciary theory is to call into question the popular concept of obligations erga omnes in international law.
Contrary to the ICJ’s classic statement in Barcelona Traction, a state’s peremptory duty to refrain from acts of genocide, slavery, and racial discrimination are not “[b]y their very nature” “obligations of a State towards the international community as a whole.”
Rather, a state “is bound to extend . . . the protection of the law and assumes obligations concerning the treatment to be afforded” individuals—whether nationals or nonnationals—because these norms are constitutive of the fiduciary authorization of state sovereignty.
Under the fiduciary conception of cosmopolitan citizenship, states bear fiduciary obligations toward all persons subject to state power, and accordingly vulnerable persons but not states are the relevant rights-bearers for bringing claims based on jus cogens violations.
This is not to suggest, of course, that the international community ought to be indifferent to genocide, slavery, or apartheid. As we have seen, the international community—acting through organizations such as the U.N. Security Council—may serve as a secondary guarantor of human rights.
An international tribunal might consider this guarantor role sufficient justification to allow states to bring next-friend claims on behalf of individuals who have suffered jus cogens violations in other states.
Nevertheless, while the result achieved by so-called erga omnes obligations might be defensible, the concept of obligations erga omnes as applied to peremptory norms is not.
Absent a procedural right conferred by treaty, states cannot claim any material interest of their own in another state’s human rights observance.
Thus, whatever salience the concept of obligations erga omnes may have in other contexts, “the basic rights of the human person” discussed in Barcelona Traction do not qualify as such.

E. Nonabsolute Human Rights

As we have discussed, most human rights, such as freedom of expression or association, can admit of derogation or limitation.
But it bears emphasizing that the fiduciary model requires states to respect these “ordinary” human rights, too.
Ordinary human rights satisfy the fiduciary theory’s formal and substantive criteria: they vindicate the principle of integrity by presupposing that state officials cannot self-deal, they affirm the formal moral equality of individuals, and they directly express solicitude for the dignity and well-being of the individual.
Therefore, under the fiduciary theory, “ordinary” human rights are presumptively mandatory.
What is less clear and worthy of further research is whether the fiduciary conception of sovereignty points to conditions under which derogation from these norms is permissible.
We have seen that the ICCPR and the European Convention permit derogation in times of emergency. Human rights treaties also permit restrictions of certain rights when the interests those rights protect are clearly outweighed by more pressing considerations, such as the rights of others.
For example, Article 18(3) of the ICCPR allows states to impose some restrictions on freedom of religion, but only if the restrictions are “prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” So, for example, freedom of religion cannot be called upon to defend acts of violence against nonbelievers.
When the state limits nonabsolute rights in defense of other fundamental rights and freedoms, the fiduciary model suggests that it bears a burden to justify its actions publicly, and thereby accept legal and political responsibility for its actions. In other words, restrictions on nonabsolute, derogable rights must pass a test of proportionality, and they must always take the form of a publicly defensible justification that meets certain legal standards.
The test of proportionality immediately raises questions of who gets the last word on the interpretation of human rights, the judiciary or the legislature. The more immediate concern from the standpoint of the fiduciary model, however, is the requirement of public reason-giving itself.
On the fiduciary theory, this requirement reflects the foundational idea that sovereignty ultimately resides in the people: the state must ground its actions in reasonable justifications to ensure that individuals are subject to the rule of law, not arbitrary exercises of public power.
While specifying the exact form and nature of this justification lies beyond the scope of this paper, such justifications would have to take seriously the substantive principles from the fiduciary framework, namely: integrity, formal moral equality, solicitude, equal security, and the procedural demands of the rule of law.

F. Legal Consequences of Breaches of Peremptory Norms

The eminent publicist Christian Tomuschat suggests that legal inquiry into jus cogens is a two-stage endeavor: (1) identify the peremptory norm, and (2) determine the legal consequences that flow from the norm’s breach.
This Article has focused on establishing a theory capable of guiding inquiry under the first stage of Tomuschat’s framework. The specific legal consequences that would flow from a breach of jus cogens and the optimal enforcement vehicles for securing state compliance with jus cogens may be highly context dependent and subject to further considerations beyond the scope of this study.
An interesting issue in this regard is whether a state that regularly violated peremptory norms would have the legal capacity under international law to enter binding treaties or otherwise act as an agent of its people at the international level.
With respect to civil remedies for specific breaches of jus cogens, space permits us to signal only that the remedies available should seek to make the wronged person whole, thereby rectifying (to the extent practicable) the past wrong. Happily, the fiduciary character of state legal authority offers a fruitful starting point for future consideration of these critical issues.

Search This Blog

sic itur ad astra

Public International Law: A Fiduciary Theory of Jus Cogens

Comments

Post a Comment

Popular posts from this blog

Equality and Human Rights: The United Nations and Human Rights System (September 16, 2023)

Commercial Laws 1: R.A. No. 11057 — Personal Property Security Act

Land Title and Deeds: Chapter 1 — What Lands are Capable of Being Registered