ON TRUST: THE U.N. SECURITY COUNCIL AS FIDUCIARY.

• Author: Hovell, Devika

TABLE OF CONTENTS INTRODUCTION 1233 I. THE FIDUCIARY CONSTRUCT AS A PRECEPT OF LAW 1237 A. The Fiduciary Relationship 1239 B. The Scope of Protected Interests 1241 C. Fiduciary Obligations 1243 1. Duty of Loyalty 1244 2. Duty of Care 1244 3. Subsidiary Duties 1245 II. THE FIDUCIARY CONSTRUCT AS A PRECEPT OF AUTHORITY 1246 A. Source 1247 B. Content 1251 1. The Fiduciary Relationship 1251 2. Protected Interests 1253 3. Fiduciary Obligations 1255 III. THE FIDUCIARY CONSTRUCT AS INTERNATIONAL PRECEPT 1257 A. The Contractual Concept 1258 B. The Constitutional Concept 1261 1. The Fiduciary Relationship 1263 2. Protected Interests 1269 3. Fiduciary Obligations 1271 i. Duty of Nonexploitation 1272 ii. Duty of Due Performance 1275 iii. Subsidiary Duties: A Set of Procedural Obligations 1279 IV. CASE STUDIES 1280 A. Privatization of Public Assets in Kosovo: The Private/Public Problem 1281 B. Sexual Exploitation and Abuse by U.N. Peacekeepers: The Problem of Paternalism 1284 C. Exercise of the Veto and Failures to Protect: The Problem of Pluralism 1287 D. Due Process in Targeted Sanctions Decision-Making: The Problem of Displacement 1292 CONCLUSION 1294 INTRODUCTION

Power and trust can be an unholy alliance. Trust itself does nothing to control power and can, if misplaced, facilitate power's exploitation. Certain legal systems have created the construct of the fiduciary as a way to regulate particular relationships "in which one party... [exercises] discretionary power over the significant practical interests of another." (1) To the extent the fiduciary construct has been described as a principle of trust, trust is used here as a metaphor for a legal expectation that those exercising control over another's interests will not exploit or squander those interests. Considered in this way, fiduciary law has more to do with distrust than trust, with law offering itself as a surety in situations in which mere trust has the potential to corrupt.

The U.N. Security Council is a context in which trust alone has proved no match for power. The drafters of the U.N. Charter vested the Council with vast discretionary power in the expectation it would take its place among the harbingers of international peace and security and contribute to the "salvation of mankind." (2) This trust has not always been rewarded. Certain recent missteps by the Council have been characterised as a "betrayal of trust," including (1) the exercise of veto power to prevent measures to address atrocity crimes in Rwanda, Srebrenica and Syria, among other conflicts; (3) (2) sexual exploitation and abuse by U.N. peacekeepers; (4) (3) responsibility for severe cholera outbreak in Haiti; (5) and (4) due process failures in imposing sanctions on individuals. (6) The loss of trust is pertinent. The Council relies upon collaboration and compliance by state and non-state actors to fulfill its mandate, (7) a mandate increasingly described in terms of governance. "Sociologists who have studied the phenomenon of 'social capital' have argued that trust is a condition of effective govern[ance]," (8) enabling cooperation and collaboration in the achievement of valuable goals. (9) As Kristina Daugirdas has described in her detailed work on the reputation of international organizations, "when an international organization's reputation... suffers," stakeholders will be "less willing to support the organization financially and otherwise, less willing to follow its recommendations, or more reluctant to turn to the organization to address new problems." (10)

This Article considers the potential value in applying the fiduciary construct in the Security Council setting as a way to consolidate trust. The legal basis for this extension of the principle is not obvious. The origin of fiduciary law is in the private law of equity developed as part of the common law. (11) However, by mapping the development of the fiduciary concept in common law jurisdictions, the legal logic in its extension to the Security Council setting becomes more evident. Development of the fiduciary relationship can be tracked through a number of shifts, from an ad hoc to a generalizable concept of private law; from private law to the context of public governance and from public governance to international governance. This Article necessarily builds on the work of scholars who have navigated these shifts. My aim is to engage critically with this literature and consider whether it is appropriate to carry the concept into the distinctive setting of the Security Council.

For certain scholars who view fiduciary law as a "meta concept" potentially applicable to relationships with a transnational or global scope, the proposition will not be controversial. (12) However, many other scholars consider the fiduciary construct to have already been stretched too far beyond its intended remit and "should not be the growing area that it is sometimes alleged to be." (13) It could be that the loose association of the term "fiduciary" with "trust" has bred a temptation to import the label into new contexts without adequate attention to the principle's roots or parameters. Indeed, it is arguable that the use of the term fiduciary should sometimes be seen as more legal metaphor than legal principle, with implications for the legitimacy of legal authority instead of legal liability. (14) The problem is a failure, on occasion, to distinguish between these two different usages of fiduciary, that is, fiduciary as legal principle and fiduciary as a principle of authority.

In this Article, the first step is to distinguish between these two manifestations of the fiduciary construct. The second step is then to determine whether either fiduciary construct applies or should apply in the U.N. Security Council setting. Of course, "[l]aw is a source-based enterprise." (15) In considering the application of fiduciary law to the U.N. Security Council, it is clearly not enough to point to the existence of such principles in the private law of the United States, or the United Kingdom, or Japan, or India, or even to a modest collection of jurisdictions (16) in which fiduciary or fiduciary-like principles have been found to exist. (17) The focus of this Article is on the position under international law, a context in which positivism "remains the lingua franca." (18) Our first port of call is accordingly to the pedigree sources of international law listed in Article 38 of the Statute of the International Court of Justice, namely treaties, customary international law and general principles of law. (19) An additional challenge, if such obligations are found to exist under international law, will be to establish that these principles apply to the U.N. Security Council. As will be shown, the heterogeneity of principles of fiduciary law across legal systems coupled with the broad discretion granted to the Council under the Charter renders the exercise of identifying positive principles of fiduciary law applicable to the Security Council complicated. (20)

Nevertheless, while a positivist analysis may be the beginning, it should not be the end of the inquiry. Considering the political setting within which it operates, the Security Council is concerned not merely with the legality but also with the legitimacy of its authority. (21) To ignore legitimacy in analysing the role of law in the U.N. context is, as the expression goes, to leave Hamlet out of the play. Adherence to fiduciary law may be justified by factors other than a legal requirement to adhere to it. In positivist terms, there are very few legal restrictions on the Council, yet this has come with negative consequences in terms of wider perceptions of the Council's legitimacy. (22) Recent controversies have led to a "crisis of legitimacy" in U.N. decision-making. (23) In the absence of objective standards by which the conduct of international officials can be assessed, or against which Council officials and agents can be held accountable when they are perceived to have fallen short, the Council is deprived of the vital function of law as a legitimating mechanism facilitative of its overall authority. (24)

The discussion of the fiduciary principle in both the domestic and international context will accordingly be dual pronged. Parts I and II seek to understand and outline the fiduciary construct for the benefit of international lawyers, both as a precept of law and as a precept of authority. In Part III, I consider the potential for the fiduciary construct to be recognized as an international precept, either in narrow terms as a legal principle or in broader terms as a principle of authority. In Part IV, I seek to apply the principles to a number of case studies as a means to determine whether fiduciary law and theory has any role to play in the Security Council setting.

1. THE FIDUCIAEY CONSTRUCT AS A PRECEPT OF LAW

   For international lawyers, as will be explained, one purpose of understanding domestic fiduciary law is to ascertain whether it can serve as the source of a general principle of international law. For much of its history, fiduciary law was not regarded as a field of law in its own right, but rather "the various types of fiduciaries [were] studied in the context of... specific substantive areas of law." (25) Tamar Frankel's work was pivotal in identifying fiduciary law as a "discrete category... properly separate from contract, tort, [trust,] and the other departments of private law." (26) However, the idea of fiduciary law as a generalizable category is not without problems. (27) The heterogeneity of fiduciary principles is revealed not only across various kinds of fiduciary relationships but also across jurisdictions. (28)

   This indicates that the idea of identifying "general principles" of fiduciary law may be naive. Nevertheless, there is clearly something distinctive about the fiduciary construct, and salient resemblances between established categories of fiduciary...