Fiduciaries of Humanity

How International Law Constitutes Authority

Evan J. Criddle and Evan Fox-Decent

Discusses a new model of public international law where individuals as well as states are proper subjects, while human dignity has come to rival state autonomy as an organizing principle of international law
Covers the fiduciary theory that reconciles state authority and responsibility under international law
Explains how sovereign authority depends on a state's compliance with principles of responsibility
Elaborates and defends the fiduciary model while exploring its application to a variety of current controversies
Provides a rigorous philosophical account of the moral basis for state authority and state responsibility
Original approach to the recognition of states, and to the relationship between human rights and humanitarian law

Fiduciaries of Humanity

How International Law Constitutes Authority

Evan J. Criddle and Evan Fox-Decent

Description

Public international law has embarked on a new chapter. Over the past century, the classical model of international law, which emphasized state autonomy and interstate relations, has gradually ceded ground to a new model. Under the new model, a state's sovereign authority arises from the state's responsibility to respect, protect, and fulfill human rights for its people. In Fiduciaries of Humanity: How International Law Constitutes Authority, Evan J. Criddle and Evan Fox-Decent argue that these developments mark a turning point in the international community's conception of public authority. 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. In contrast to the receding classical model of public international law, which assumes an abiding tension between a state's sovereignty and principles of state responsibility, 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. The authors 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.

Fiduciaries of Humanity

How International Law Constitutes Authority

Evan J. Criddle and Evan Fox-Decent

Acknowledgments

1. The Fiduciary Character of Sovereignty
I Introduction
II The Classical Model of Sovereignty
III From Classical Sovereignty to Relational Sovereignty
IV The Fiduciary Model of Sovereignty
V The Legal Structure of Fiduciary Relationships
VI The Moral Foundations of Fiduciary Obligation
VII A Kantian Theory of Fiduciary Sovereignty
VIII Lockean and Razian Theories of Fiduciary Sovereignty
IX The Fiduciary Constitution of International Law
X Summary of the Argument

2. Creating Fiduciary States
I Introduction
II Constituting Fiduciary States
III Distributing Sovereignty
IV Recognizing Fiduciary States
V A Deliberative Theory of State Recognition
VI Conclusion

3. Human Rights and Jus Cogens
I Introduction
II Developing Jus Cogens and International Human Rights Law
III In Search of a Theory
IV Fiduciary States and International Norms
V The Questions Revisited
VI Objections to the Fiduciary Theory
VII Conclusion

4. FIDUCIARY STATES IN EMERGENCIES
I Introduction
II International Law's Emergency Constitution
III Fiduciary States, Human Rights, and Emergencies
IV Carl Schmitt's Challenge
V The Fiduciary Theory's Response
VI The Role of Courts and International Institutions
VII On the Relationship Between Law and Power
VIII Conclusion

5. FIDUCIARY STATES IN ARMED CONFLICT
I Introduction
II Fiduciary States' Responsibility To Protect
III Fiduciary Realism
IV Fiduciary States as Trustees of Humanity
V International Armed Conflict
VI Internal Armed Conflict
VII Asymmetric Self-Defense
VIII Occupation
IX Humanitarian Intervention
X Conclusion

6. COSMOPOLITAN CITIZENSHIP: DETAINING FOREIGN NATIONALS
I Introduction
II A Fiduciary Account of Combatant Detention
III The Geneva Conventions
IV Black Holes
V The Problem of Classified Evidence
VI Conclusion

7. COSMOPOLITAN CITIZENSHIP: THE RIGHT TO REFUGE
I Introduction
II The Development of International Refugee Law
III Humanitarianism, Human Rights, and Territory
IV A Fiduciary Interpretation of International Refugee Law
V Conclusion

8. INTERNATIONAL INSTITUTIONS AS TRUSTEES OF HUMANITY
I Introduction
II International Institutions as Indirect Trustees of Humanity
III International Institutions as Direct Trustees of Humanity
IV The Authority and Obligations of International Institutions
V The Relationship Between International and Domestic Institutions
VI Conclusion and Future Directions

Index

Fiduciaries of Humanity

How International Law Constitutes Authority

Evan J. Criddle and Evan Fox-Decent

Author Information

Evan J. Criddle is Professor of Law at William & Mary Law School, where he specializes in public international law, international human rights law, administrative law, fiduciary law, and the law of armed conflict. He received his JD from Yale Law School and practiced transnational litigation prior to entering academia. His scholarship has appeared in the Cornell Law Review, European Journal of International Law, Georgetown Law Journal, Northwestern University Law Review, and Yale Journal of International Law.

Evan Fox-Decent is Associate Professor at McGill University's Faculty of Law, where he researches and teaches legal theory, human rights, administrative law, and the law of fiduciaries. He holds a JD and PhD from the Univ. of Toronto, and has worked extensively in human rights and democratic governance reform in Latin America. He is the author of Sovereignty's Promise: The State as Fiduciary (OUP, 2012), and his research has appeared in Legal Theory, Human Rights Quarterly, Theoretical Inquiries in Law, Law and Philosophy, University of Toronto Law Journal, and McGill Law Journal.

Fiduciaries of Humanity

How International Law Constitutes Authority

Evan J. Criddle and Evan Fox-Decent

Reviews and Awards

"With a bold and broad brush, the authors have painted an impressive picture. They offer an interesting re-description of core issues of the current international legal order. Their tour de force through international law offers a fresh perspective." Anne Peters, Max Planck Institute for Comparative Public Law and International Law, Heidelberg

"Fiduciaries of Humanity redeems the promissory note first tendered in the authors' ground-breaking article: that a fiduciary relationship can ground both the prerogatives of - and constraints on - sovereignty, and indeed the international legal system itself. Though their account appeals to the notion of Humanity, this is not your parents' Natural Law. This is the future of international legal theory." -Jens David Ohlin, Associate Dean for Academic Affairs & Professor of Law, Cornell Law School