THE INTERNAL MORALITY OF INTERNATIONAL LAW.

• Author: Fox-Decent, Evan

1. Introduction

   We would like to express our sincere thanks to the McGill Law Journal for organizing the symposium that was the wellspring for this volume. We gratefully acknowledge as well our debt to the volume's contributors-Seth Davis, Chimene Keitner, Frederic Megret, Jens David Ohlin, Edmund Robinson, and Kimberley N. Trapp--and to colleagues who participated in the symposium by offering valuable commentary: Margaret de Guzman, Colin Grey, Richard Janda, and Patrick Macklem.

   We will offer reflections on our colleagues' insightful commentary in Part IV. Before doing so, however, we will first use this opportunity to offer a brief restatement of two central ideas from Fiduciaries of Humanity, (1) and their relationship to one another: the prohibition on unilateralism and the fiduciary criterion of legitimacy. The prohibition on unilateralism is a legal principle that denies one party any authority or entitlement to dictate terms to another party of equal standing. The fiduciary criterion of legitimacy is a standard of adequacy for assessing the normative legitimacy and lawfulness of the actions of international public actors. The criterion demands that public actions have a representational character in that, for them to be legitimate and lawful, they must be intelligible as actions taken in the name of, or on behalf of, the persons subject to them. In Part II, we elaborate on some of the ways international law reflects the prohibition on unilateralism and the fiduciary criterion. We suggest that the two are complementary, and that their synthesis comprises an internal morality of international law.

   In Part III, we elaborate on our conception of the internal morality of international law, drawing on the writings of Lon L. Fuller. We compare the fiduciary internal morality with the Fullerian theory developed by Jutta Brunee and Stephen Toope, and suggest that the fiduciary theory can underwrite a compelling account of the rule of international law. We then use the fiduciary construal of the rule of international law, in Part IV, to develop or comment on our colleagues' contributions to this volume.

2. Standing to Resist Unilateralism

   In Fiduciaries of Humanity, we suggest that the prohibition on unilateralism operates as an organizing idea of international law at a number of levels and across a wide range of fields. At the interstate level, the principle explains the foundational doctrine of sovereign equality according to which states enjoy legal equality and independence from one another, since independent equals cannot dictate terms to one another. States are thus barred at international law from violating the territorial integrity of other states, and from otherwise interfering unilaterally in the internal affairs of other states. When disputes arise, states are expected to pursue good faith negotiations, with resort to impartial third-party arbitration or adjudication if necessary. (1)

   At the intrastate level, the prohibition on unilateralism bars individuals from dictating terms to one another. If one individual were legally entitled to impose terms of interaction on another, the principle of legal equality would be compromised. The ascendant party to the interaction would possess a legal prerogative not enjoyed by the other. On a Kantian construal, the prohibition on unilateralism follows from Kant's innate right to equal freedom; the mere subjection of one individual to the will of another (even if the other is reasonable, acting in good faith, and so on) is a wrongful compromise of equal freedom. On a Hobbesian construal, unilateralism violation of the principle of legal equality is enough to demonstrate its wrongfulness. At the intrastate level of individuals and groups interacting with one another as private parties, the prohibition on unilateralism bears on horizontal relations between those individuals and groups.

   We argue in Fiduciaries of Humanity that the prohibition on unilateralism may be understood to have two aspects. One is captured by the Kantian principle that no person may be treated as a mere means, but only as an end, which is the principle of non-instrumentalization. The other aspect is the republican principle of non-domination, according to which one person may not be subject to the arbitrary will of another. The Kantian principle condemns actual abuse. The republican principle condemns the possession of arbitrary power that would make abuse possible, whether or not the power is ever in fact used abusively. On our construal, international law recognizes and authorizes states to govern and represent their people to safeguard them against instrumentalization and domination, and thereby provide for their equal freedom and legal equality. States offer a vertical relation of authority to resolve a horizontal problem of injustice.

   But states, of course, bring serious risks of new forms of instrumentalization and domination. International law, we argue, mitigates those risks by subjecting states to a variety of legal regimes protective of equal freedom and legal equality, such as international human rights law, international humanitarian law, and international law's regime for regulating emergencies. Within these regimes, some norms, such as the prohibitions on genocide and torture, are regarded as peremptory or jus cogens, and are of a kind from which no limitation or derogation is permitted. Two puzzles are immediately apparent. First, on what principled basis can we distinguish peremptory from non-peremptory norms? Second, how can we distinguish legitimate and lawful state action from wrongful counterfeits that constitute abuse or domination? The fiduciary criterion of legitimacy emerges from the fiduciary theory's answers to these questions.

   In our view, peremptory norms prohibit policies of intractable abuse or domination that could never be understood to be adopted in the name of, or on behalf of, the persons subject to them. Genocide and torture, for example, are not intelligible as policies that could be adopted in the name of, or on behalf of, their victims. By contrast, policies that modestly limit freedom of expression for publicly avowable reasons (e.g., health warnings on cigarette packages) are intelligible as polices that could be adopted in the name of, or on behalf of, the persons subject to them. Put another way, publicly justifiable limitations on certain human rights (e.g., the right to freedom of expression) are consistent with fiduciary norms of stewardship and representation that govern public authorities. We have argued that these include principles of integrity (resisting corruption and capture), formal moral equality (like cases receive like treatment), and solicitude (due regard for legitimate interests). The process and substance of democratic public justification embodies the principles of integrity and formal moral equality, and demonstrates due regard for the legitimate interests of the people on whose behalf and in whose name authorities govern. In the case of peremptory norms, no such justification is possible because any infringement of these norms constitutes wrongful instrumentalization or domination, and so cannot be action taken in the name of, or on behalf of, the persons made to suffer it. The fiduciary criterion of legitimacy thus emerges as a standard of adequacy that takes its cues from the norms that constitute and regulate representation, which are also norms that resist instrumentalization and domination. In this context, the fiduciary criterion lets us distinguish peremptory from nonperemptory norms.

   In Fiduciaries of Humanity, however, we argue that the fiduciary criterion of legitimacy has a wider mission than picking out jus cogens norms from the diverse catalogue of international legal rights and obligations. And, we suggest that the criterion results ultimately from the fiduciary structure of international legal order. Roughly, our account is that there is a fiduciary power-conferring rule (the "fiduciary principle") within international legal order akin to the power-conferring rule pacta sunt servanda that transforms international agreements into binding treaties. The fiduciary principle authorizes states to possess and use public powers, but on condition that those powers be used in the name of, or on behalf of, every person subject to them. The nature of public power on our theory is therefore fundamentally representational, and its scope is comprehensive across persons amenable to the relevant authority's jurisdiction. The fiduciary criterion of legitimacy, therefore, is generated by the fiduciary principle's limited and conditional authorization of public powers as well as anti-unilateralist norms of role that constitute and govern representation.

   The fiduciary criterion provides a normative standard for assessing the moral legitimacy of a given policy. In the case of extraterritorially detained terror suspects, for example, we argue that it would be morally reprehensible to deny them humane treatment and due process. Such a denial would instrumentalize the suspect and undermine the state's claim to have authority to detain, since the detaining state would hold the suspect in a manner that could not credibly be said to be done in the name or, or on behalf of, the detainee. For the detaining state to make such a claim, the state has to be conceived as a fiduciary of humanity, and as acting on behalf of humanity in a manner consistent with minimal legal protections.

   We suggest that the structure and operation of international refugee law reveal vividly the idea of states as local fiduciaries of their people and also global fiduciaries of humanity. In this context, we also...