Evan J. Criddle

The Fiduciary Constitution of Human Rights

The authors argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or state-like actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

Customary Constraints on the Use of Force: Article 51 with an American Accent

This Article, prepared for a symposium on ‘The Future of Restrictivist Theories on the Use of Force,’ examines the current trajectory of restrictivist scholarship in the United States. In contrast to their counterparts in continental Europe, American restrictivists tend to devote less energy to defending narrow constructions of the UN Charter. Instead, they generally focus on legal constraints outside the Charter’s text, including customary norms and general principles of law such as necessity, proportionality, deliberative rationality, and robust evidentiary burdens. The Article considers how these features of the American restrictivist tradition reflect distinctive characteristics of American legal culture, and it explores the tradition’s influence on debates over anticipatory self-defense and the use of force against non-state actors abroad. The Article concludes by examining how the American restrictivist tradition is beginning to shape the United States’ approach to the use of force in response to cyber attacks.

Protecting Human Rights During Emergencies: Delegation, Derogation, and Deference

Leading human rights treaties permit states as a temporary measure to suspend a variety of human rights guarantees during national crises. This chapter argues that human rights derogation is best justified as a temporary mechanism for empowering states to protect human rights, rather than as a device for enabling national authorities to advance their own interests in a manner that compromises human rights protection. Human rights treaties use broad legal standards to entrust states with responsibility for deciding what measures are best calculated to maximise human right protection during emergencies. For this delegation of authority to operate effectively, international tribunals must accord a healthy measure of deference to state derogations. Deference to state derogations is not warranted, however, if circumstances suggest that national authorities are not prepared to serve as impartial, rights-optimising trustees for their people.

Three Grotian Theories of Humanitarian Intervention

Abstract 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.

Introduction: Testing Human Rights Theory During Emergencies

Public emergencies such as terrorist attacks, economic catastrophes, and natural disasters offer an intriguing vantage point from which to examine the theoretical underpinnings of international human rights law (IHRL). Conventional wisdom suggests that human rights are universal, timeless, and inalienable entitlements. The Universal Declaration of Human Rights (UDHR) famously declares that human rights represent a “common standard of achievement for all peoples and all nations” that derives its authority from the “inherent dignity” and “equal and inalienable rights of all members of the human family.” During emergencies, however, IHRL permits states to deviate from many of its standards, producing localized variation in the application of human rights standards. Limitations clauses in human rights treaties empower states to curtail individual liberties such as freedom of expression within their jurisdiction in order to promote general societal interests such as national security and public health. Some human rights agreements also allow states to suspend certain human rights protections temporarily where necessary to suppress threats to “the life of the nation” or the “independence