Band 16, Heft 2 - Sovereignty as Trusteeship for Humanity — Historical Antecedents and Their Impact on International Law

Whenever sovereignty is defined as a supreme, absolute, unfettered and unlimited power, there is an obvious contradiction between two ideas: that states are sovereign and that they can or should be limited. Nevertheless, while many legal texts proclaim sovereignty, there are several signs that states are indeed limited by constitutional or international law. In light of this situation, some authors claim that those texts are mere proclamations and that sovereignty is an obsolete concept, while others argue that states are still sovereign and that there are no real limits, but others still try to conceive of sovereignty as limited by morality or natural law. Professor Benvenisti’s remarkable theory of sovereigns as trustees of humanity is part of a very old tradition going back to the sixteenth century where sovereignty was defined as an absolute power, which is unlimited by positive law, yet based on and limited by natural law. This Article tries to show that this concept of sovereignty has emerged because of the necessity to provide a final point of imputation to the hierarchy of norms, and that the limitation by natural law was part of the original definition. Sovereignty so defined can usefully justify not only the power of kings and lawmakers but also that of courts trying to control kings and lawmakers.

Eyal Benvenisti has sought to provide an optimistic account of international law through reconceptualizing the idea of sovereignty as a kind of trusteeship for humanity. He thus sketches a welcome antidote to trends in recent work in public law including public international law that claim that international law is no more than a cloak for economic and political interests, so that all that matters is which powerful actor gets to decide. In this Article, I approach his position through a discussion of the debate in Weimar about sovereignty between Carl Schmitt, Hans Kelsen and Hermann Heller. I try to show that Heller’s almost unknown legal theory might be helpful to Benvenisti’s position. Heller shared with Schmitt the idea that sovereignty had to have a central role in legal theory and that its role includes a place for a final legal decision. Indeed, much more than Schmitt, Heller regarded all accounts of sovereignty as inherently political. However, in a manner closer to the spirit of Kelsen’s enterprise than to Schmitt’s, he wished to emphasize that the ultimate decider - the sovereign decision unit of the political order of liberal democracy - is entirely legally constituted. Moreover, Heller argued that fundamental principles of legality condition the exercise of a sovereign power in a way that explains the specific legitimacy of legality and which might supply the link between sovereignty and ideas such as trusteeship and humanity.

The traditional concept of sovereignty is largely independent of democratic legitimacy and completely indifferent to any obligation towards non-national citizens. But can this traditional concept meet the normative expectations of a post-traditional understanding of political authority as well as the challenges of an ever more interconnected world? In order to respond to this question, the Article analyzes the conceptual presuppositions that lie at the basis of the notion of “sovereignty,” first regarding its sources, and second regarding the ideas of rationality that are applied when sovereign actors operate. As far as the sources of sovereignty are concerned, it is argued that both of them - the “ascending” and the “descending” - although decisive for determining the quality of the legitimacy of political power, have little influence on a positive attitude of sovereigns towards aliens’ interests. To clarify the conditions for an opening of sovereign powers to solidarity, an assessment of the rationalities which are implemented when a sovereign puts actions into effect is therefore required. Yet most rationality concepts - or uses of practical reason - prove to be negative or at least useless when it comes to the question of supporting solidarity: the gamut ranges from open hostility towards the idea of taking the interests of aliens into account, through substantial indifference, to a positive approach which presupposes, however, non-provable metaphysical assumptions or an individual mindset with no pretension of issuing norms of general validity. Only the communicative conception of reason meets the criteria for a convincing justification of solidarity towards aliens as an obligation. The author therefore concludes that only an “ascending” sovereignty based on a communicative understanding of rationality can be considered fully legitimate insofar as the sovereign power, in this case, first originates from the will of the citizens and, second, is morally, politically and legally obliged to a solidaristic attitude towards the justified interests of non-citizens.

A genealogical account of state sovereignty explores the ways in which the concept has emerged, evolved, and is in decline today. Sovereignty has a theological foundation, and is deeply bound up with the idea of God, in particular a voluntarist God, presented as being capable of intervening directly in the world. Religious conflicts in the sixteenth and seventeenth centuries forced the separation between religion and politics, and opened the space for the emergence of a national state endowed with sovereignty which has dominated the world until now. Today’s rise of international and transnational obligations challenges the conventional understanding of state sovereignty, which cannot account for the normative density of the global order and the corresponding decline of state-based political authority. In order to explain that, I contrast two competing understandings of state sovereignty: a static one and a dynamic one. The static understanding regards sovereignty as absolute within the state territory. The dynamic understanding regards sovereignty as evolutionary: according to this account, the state is just one possible form that sovereignty can take. I conclude by suggesting that the dynamic understanding of state sovereignty is better suited to explaining the decline of state sovereignty.

My Article seeks to explore a few antecedents of the idea that sovereignty may be encumbered with some obligations and duties vis-à-vis non-sovereigns and even strangers. Theories about limitations on sovereignty and obligations on the part of sovereigns often arose out of the fertile conceptual ground of Roman private law, in particular rules of property law governing usufruct and rules of contract law, such as those governing mandate. Early modern thinkers, especially Hugo Grotius (1583-1645), built on these ideas and, in addition, developed an account of moral and legal obligations arising, independently of God’s will, from a universal human nature. Building on Cicero, Grotius was among the first early-modern thinkers to elaborate the distinction between “perfect” duties of justice and “imperfect” duties of beneficence, an important idea that had wide influence through the work of Emer de Vattel (1714-1767). The Article closes by offering a few observations on the trajectories within which Professor Benvenisti’s concept of “sovereigns as trustees of humanity” could be situated.

This Article examines the concept of sovereign trusteeship in the context of the history of empire. Many accounts of sovereign trusteeship and the responsibility to protect explain the development of those concepts in terms of seventeenth century natural law theories, which argued that the origins of the social contract were in subjects seeking self-preservation. The state, accordingly, was based upon its duty to protect its subjects, while also having a secondary responsibility for subjects beyond its borders arising from human interdependence. I shall show that the concepts underlying sovereign trusteeship - human fellowship, self-preservation and the protection of others’ interests - were as entangled with the expansion of early modern states as they were with the justification of those states themselves. The legacy of that history is that arguments employed to justify sovereign trusteeship and the responsibility to protect remain highly ambiguous and subject to rhetorical manipulation. On the one hand, they can be represented as underpinning a new liberal international order in which states and international organizations are accountable to the human community, not only to their own subjects. On the other, these same terms can be deployed to justify expansionism in the name of humanitarianism, as they have done for hundreds of years. Only by paying careful attention to the contexts in which these claims are made can we discriminate the intentions behind the rhetoric.

This Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their natural law underpinnings and concerns about how they have facilitated Western colonialism. As an alternative, this Article outlines a third theory that builds upon Grotius’s account of humanitarian intervention as a fiduciary relationship, while updating Grotius’s account for the twenty-first century. According to this new fiduciary theory, when states intervene to protect human rights abroad they exercise an oppressed people’s right of self-defense on their behalf and may use force solely for the people’s benefit. As fiduciaries, intervening states bear obligations to consult with and honor the preferences of the people they seek to protect, and they must respect international human rights governing the use of force within the affected state. By clarifying the respective responsibilities of the Security Council and individual states for humanitarian intervention, the fiduciary theory also lends greater coherency to the international community’s “responsibility to protect” human rights.

We explore two special challenges indigenous peoples pose to the idea of sovereigns as trustees for humanity. The first challenge is rooted in a colonial history during which a trusteeship model of sovereignty served as an enabler of paternalistic colonial policies. The challenge is to show that the trusteeship model is not irreparably colonial in nature. The second challenge, which emerges from the first, is to specify the scope and nature of indigenous peoples’ sovereignty within the trusteeship model. Whereas the interaction between states and foreign nationals is the locus of cosmopolitan law, the relationship between states and indigenous peoples is distinctive. In the ordinary cosmopolitan case, foreign nationals do not purport to possess legal authority. Indigenous peoples often do make such a claim, pitting their claim to authority against the state’s. We discuss how international law has attempted to come to grips with indigenous sovereignty by requiring states to include indigenous peoples in decision-making processes that affect their historical lands and rights. A crucial fault line in the jurisprudence, however, separates a duty to consult indigenous peoples from a duty to acquire their free, prior and informed consent (FPIC). The latter but not the former recognizes that indigenous peoples possess a veto over state projects on their lands, in effect recognizing in them a limited co-legislative power. We focus on recent jurisprudence from the Inter-American Court of Human Rights, and consider whether either the duty to consult or FPIC are enough to dispel the shadow of the trusteeship model’s colonial past. We suggest that they are a move in the right direction, and that implicitly they represent international law’s recognition that states are no longer the sole bearers of sovereignty at international law. In limited circumstances, international law recognizes indigenous peoples as sovereign actors.