Interest Balancing vs. Fiduciary Duty: Two Models for National Security Law

Abstract

The metaphor of the balance has long dominated national security law. While judges and policymakers have debated the relative weight states should give to civil liberty concerns and public security concerns in various contexts, few have questioned the general balance metaphor that structures these debates. Indeed, several legal scholars have argued that the balance metaphor is the only tenable model for addressing national security crises.

This brief essay examines two cases originating in Germany, which defy the interest-balance model. In the first case, the Federal Constitutional Court of Germany declared unconstitutional legislation authorizing the military to intercept and shoot down hijacked passenger planes that could be used in a 9/11-style attack. In the second case, the European Court of Human Rights held that German law enforcement authorities could not abrogate the prohibitions against torture or cruel, inhuman, and degrading treatment even under circumstances where the life of an innocent child appeared to be at stake. Each of these decisions emphatically rejects the interest-balance model by declaring that human rights are not mere interests that states may weigh against other interests during emergencies.

We argue that these two cases are best understood as reflecting an alternative model for the relationship between state authority and human rights during national emergencies. According to this model, human rights are conceived in relational and legal terms as norms arising from a fiduciary relationship between states (or state-like actors) and persons subject to their power. States bear a fiduciary duty to guarantee their subjects’ secure and equal freedom, a duty that flows from their institutional assumption of sovereign powers. The fiduciary model posits that human rights are not merely individual interests that can be offset by other societal interests. Instead, human rights are legal rights that protect persons’ freedom and dignity (not interests or welfare), placing states under correlative legal obligations to protect those rights. By emphasizing dignity rather than interests, and secure and equal freedom rather than social welfare, the fiduciary model offers an alternative to the interest-balance metaphor that currently dominates national security law.

Keywords: national security, emergencies, emergency powers, torture, human rights, fiduciary