A Fiduciary Theory of Jus Cogens
57 Pages Posted: 6 Oct 2008 Last revised: 21 Nov 2015
Date Written: October 2, 2008
For several decades, international law has recognized certain norms such as the prohibitions against genocide, slavery, and military aggression as "jus cogens" - peremptory law which supersedes conflicting international treaties and customs. Despite widespread acceptance of the jus cogens concept, legal theorists continue to debate whether peremptory norms derive their legal authority from state consent, natural law, or the demands of international public order. Anxiety over peremptory norms' legal basis has frustrated efforts to clarify the scope and content of jus cogens, as well as placing peremptory norms on a collision course with inherited notions of state sovereignty.
Drawing on Immanuel Kant's conception of fiduciary relations, this Article develops a new theory of jus cogens based on the idea that states are fiduciaries of their people. According to the fiduciary theory, peremptory norms do not stand in opposition to state sovereignty; rather, they are constitutive of state sovereign authority because all states owe their subjects a fiduciary obligation to comply with such norms. The fiduciary model of the state resolves the longstanding tension in international legal theory between peremptory norms and state sovereignty and points to discrete formal and substantive criteria for identifying peremptory norms.
Keywords: jus cogens, peremptory norms, human rights, international law, sovereignty, fiduciary, authority, legitimacy
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