Fiduciaries of Humanity: How International Law Constitutes Authority (Chapters 1 & 7)
Evan J. Criddle & Evan Fox-Decent, Fiduciaries of Humanity: How International Law Constitutes Authority (New York: Oxford University Press, 2016) (Chapters 1 & 7)
90 Pages Posted: 24 Oct 2016
Date Written: September 6, 2016
This document contains the front matter (including table of contents), Chapter 1, and Chapter 7 of our monograph "Fiduciaries of Humanity: How International Law Constitutes Authority" (Oxford University Press 2016). We argue that under international law today, states serve as fiduciaries of humanity, and their authority to govern and represent their people is dependent on their satisfaction of numerous duties, the most general of which is to establish a regime of secure and equal freedom on behalf of the people subject to their power. International institutions also serve as fiduciaries of humanity and are subject to similar fiduciary obligations. The fiduciary theory reconciles state sovereignty and responsibility by explaining how a state's obligations to its people are constitutive of its legal authority under international law. We elaborate and defend the fiduciary model while exploring its application to a variety of current topics and controversies, including human rights, emergencies, the treatment of detainees in counterterrorism operations, humanitarian intervention, and the protection of refugees fleeing persecution.
Chapter 1 introduces the book's argument. The chapter begins by examining the classical model of sovereignty, which posits that states wield absolute authority within their respective jurisdictions. It then discusses a variety of features of contemporary international law that are in tension with the classical model, suggesting that states are now obligated under international law to use their sovereign powers to advance the interests of their people. The chapter explains how this relational conception of sovereignty is consistent with the idea that states serve as fiduciaries for humanity, and it outlines three philosophical accounts of states' fiduciary obligations, drawing on the writings of Immanuel Kant, John Locke, and Joseph Raz. Lastly, the chapter summarizes the arguments developed in subsequent chapters of the book.
Chapter 7 discusses the fiduciary theory’s implications for the protection of refugees under international law. It argues that the fiduciary theory of sovereignty best explains the duty of non-refoulement as a peremptory norm of international law. A state's obligation to provide refuge to foreign nationals fleeing persecution abroad flows from the intersection of the state’s position as a joint trustee of the earth's surface on behalf of humanity, on the one hand, and its position as a local fiduciary that international law entrusts with sovereignty over the people within a certain territory, on the other. As a fiduciary of humanity, the state acquires a cosmopolitan duty to grant refuge when an individual fleeing irresoluble threats to her human rights appears at its border.
Keywords: international law, human rights, state recognition, jus cogens, laws of war, international humanitarian law, global constitutionalism, war on terror, national security law, international refugee law, international institutions, fiduciary, rule of law
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