Professor Evan J. Criddle of William and Mary has posted "A Sacred Trust of Civilization: Fiduciary Foundations of International Law" on ssrn. It is forthcoming in Andrew Gold's & Paul Miller's Philosophical Foundations of Fiduciary Law from Oxford University Press. Cribbing now from Evan's abstract:
Many legal scholars have characterized the international community’s “responsibility to protect” as a moral or political ideal without a well-established foundation in international law. In this chapter, I argue that the legal character of the responsibility to protect cannot be so easily dismissed. The idea that individual states and the broader international community share responsibility for guaranteeing the security and basic rights of human beings can be traced back to international law’s colonial-era origins, a time when Western nations rationalized their subjugation of indigenous peoples by casting themselves as benevolent “guardians” or “trustees” for humanity. Although the historical record suggests that colonial powers abused fiduciary rhetoric as a pretext for subjugating, exploiting, and even destroying indigenous communities, over time the continuing penetration and diffusion of fiduciary concepts has subtly redefined sovereignty itself as a form of legal authority that is entrusted to states as fiduciaries for the benefit of humanity. Under this fiduciary model of sovereignty, international law and international institutions are necessary to mediate the relationship between states and their people, ensuring that this relationship is not corrupted by domination or instrumentalization. When states flagrantly neglect their responsibility to protect their people from abuse or affirmatively violate the human rights of their people, international law entrusts the international community as a whole — acting primarily through the U.N. Security Council — with responsibility to intercede for the protection of oppressed peoples. Although the international community’s responsibility to protect requires further institutional development, it constitutes an essential feature of international legal order.
This is a very exciting paper for me for a couple of reasons. First, it highlights that a key part of international law in the era of Enlightenment was about facilitating commerce. The Enlightenment had a lot of roots and purposes and one of the important ones was the promotion of a spirit of commerce. (This taps into a long-standing interest of mine about the ways that the market humanizes us. Of course there are a lot of ways that the market makes us less humane.) Second, this relates to a piece of trust law that has not yet received as much attention as it ought. We're familiar with the ways that natives as beneficiaries of a metaphorical trust with the US government as trustee emerged from Chief Justice John Marshall's opinions. But there is a pre-history here, where colonial governments literally set up trustees to manage the property of Native people. That is, the government was not just a metaphorical trustee -- it was an actual trustee.
Obviously a paper that covers so much ground is going to have to flatten out some nuance. I'm very curious about the varieties of "trust" in operation here -- and how many instances it meant something like paternalism that was so often spoken about with regard to slaves. That is, actually as not as a trustee with duties but as an overseer. I look forward to learning more about the varieties of "trust." I have illustrated this post with a picture of the Nottoway River in Southampton County, Virginia. White people appointed by the Virginia general assembly served as trustees of Native American land in Southampton well into the nineteenth century.