New voices: rethinking the sources of international law.

Author:Fox-Decent, Evan
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 9:00 a.m., Thursday, March 26, by its moderator, Anthony D'Amato of Northwestern University, who introduced the panelists: Evan Criddle of Syracuse University College of Law; Evan Fox-Decent of McGill University Faculty of Law; Annecoos Wiersema of the Ohio State University Moritz College of Law; Martins Paparinskis of the University of Oxford; and Anastasios Gourgourinis of the UCL Faculty of Laws.


In international law, the term "jus cogens" refers to norms that are considered peremptory in the sense that they are mandatory and do not admit derogation. Although the jus cogens concept has achieved widespread acceptance, international legal theory has yet to furnish a satisfying account of jus cogens's legal basis. We argue that peremptory norms are inextricably linked to the sovereign powers assumed by all states. The key to understanding international jus cogens lies in Immanuel Kant's discussion of the innate fight of children to their parents' care. Drawing on Kant's account, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to their power. An immanent feature of this state-subject fiduciary relationship is that the state must comply with jus cogens. The fiduciary theory clarifies jus cogens' s content by generating discrete criteria for identifying peremptory norms.


    To apprehend the fiduciary character of state legal authority, consider the structure of familiar fiduciary relations such as trustee-beneficiary, agent-principal and parent-child. Fiduciary relationships arise from circumstances in which one party (the fiduciary) holds discretionary power of an administrative nature over the legal or practical interests of another party (the beneficiary), and the beneficiary is vulnerable to the fiduciary's power in that she is unable, either as a matter of fact or law, to exercise the entrusted power. This administrative power is other-regarding, purposive, and institutional; it is held so as to be used on behalf of others, for limited purposes, and within the framework of a legal institution such as a family or a corporation. Beneficiaries generally are unable to protect themselves against an abuse of fiduciary power and depend on the fiduciary to promote their entrusted interests. If multiple classes of beneficiaries are subject to the same fiduciary power, the fiduciary's basic duties are fairness or even-handedness as between beneficiaries and reasonableness in the sense of having due regard for the beneficiaries' separate interests.

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

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


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

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

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


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

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

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

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

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

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


    The fiduciary theory's formal and substantive criteria provide a practical framework for identifying peremptory norms. Seven categories of norms appear in the influential Restatement on Foreign Relations of the United States as illustrations of international jus cogens: the prohibitions against genocide...

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