NEW VOICES: RETHINKING THE SOURCES OF INTERNATIONAL 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. DERIVING PEREMPTORY NORMS FROM SOVEREIGNTY In international law, the term 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. I. KANT'S MODEL OF FIDUCIARY RELATIONS 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. …

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