Eyal Benvenisti, LL.B (Jerusalem) 1984, LLM (Yale) 1988, JSD (Yale) 1990, is Anny and Paul Yanowicz Professor of Human Rights, Tel Aviv University Faculty of Law.
To whom are sovereigns accountable? In 1609 King James I offered Parliament his answer. Starting from the premise that the “[e]state of the monarchy is the supremest thing upon earth,” he equated kings to gods, because “they exercise a manner or resemblance of divine power upon earth.” Kings have absolute power and authority, “and yet accountable to none but God only.” A year later, Sir Edward Coke, then the Chief Justice of the Court of Common Pleas, handed down two judgments that contested King James’s vision. In Coke’s view, “the King cannot change any part of the common law … without Parliament” (Case of Proclamations), and even Parliament is not supreme but “controlled” by the common law (Dr. Bonham’s Case). This debate about the internal accountability of governments has drawn the attention of political philosophers and marked the evolution of domestic constitutional and administrative law ever since.
But to whom is the sovereign state as a whole accountable? Can we be satisfied with Coke’s focus on only the domestic aspect of officeholders’ accountability? Shouldn’t famine in food-importing countries count as a relevant consideration when a government considers limiting the export of grains to those countries? Shouldn’t the Indian Parliament or court take into account the adverse effects of IP regulation on foreigners whose lives depend on generic drugs made in India? It is, perhaps, the intensity of that internal debate about the limits of sovereign authority which has eclipsed an even older discourse concerning the external accountability of sovereigns. The idea that the state itself is inherently limited by obligations owed to other states and to humanity at large has a longer pedigree than the King James-Coke exchange, dating back to Stoic thinkers. As the modern concept of sovereignty began to take shape, this view of the state’s external accountability was revived by Grotius, and later by Wolff and Vattel. Despite their efforts, however, and perhaps because national governments were busy solidifying their internal authority and shielding it from the Church and other external contenders, the notion of external limitations on state sovereignty failed to gain traction.
In an era marked by extensive economic integration, diminishing resources and shrinking space, when sovereigns routinely regulate resources that are linked in many ways with resources that belong to others, even Coke’s promise of internal accountability of sovereigns leaves much to be desired. Sovereigns who are accountable only to their citizens are likely to ignore many other stakeholders. Through their daily choices regarding economic development, conservation, or health regulation, some states regularly shape the life opportunities of foreigners without either offering them voice or providing them an explanation. These foreign stakeholders have limited opportunities to participate meaningfully in shaping decisions that will affect them. In many ways, the assertion by any state today that it is accountable only to its own citizens is as convincing as King James’s that he was accountable to none but God.
The vision of sovereigns as trustees of humanity addresses the democratic and other deficits associated with unilateral choices made by national authorities without regard to negative or positive spill-over effects. It is grounded in the quest – indeed the obligation – to respect the human dignity of all individuals; everyone’s universal right to have control of their lives in their own hands, so goes the argument, must be translated into a concept of sovereignty that can minimize the systemic democratic failures that inhere in a sovereign-based system where states’ only accountability is internal.
Beyond democracy and human dignity, the earth’s limited resources offer another ground for states’ “other-regarding” obligations. As Janos Kis wrote, “[b]y carving out a territorial jurisdiction for themselves, states withdraw part of the surface of the earth from free access to outsiders.” The state system is facilitated by boundaries that exclude “others,” so governments need to explain to others their exclusive use of portions of the earth and management of their “own” internal resources. Even if one disputes Vattel’s assertion that “the earth belongs to mankind in general,” subscribing instead to the view that the earth belonged initially to nobody, the first appropriator still has to justify to the rest her basis for excluding them. Just as concerns for the excluded stakeholders are addressed in property law theory, they should be the focus of attention of public law scholars, and be reflected in evolving legal doctrines. The right of sovereigns to exclude must be even more limited than the private owner’s, because our global state system does not have the equivalent of public spaces to accommodate the stateless and there are no global institutions with the authority to limit the right to exclude when pressing social demands arise.
The analogy to property does not end there. Anyone’s right to property is contingent on the collective’s respect for the title and its protection against challengers. Similarly, the state depends on international law and international institutions to recognize its sovereign title and protect it. The prohibitions on the use of force and on annexing foreign territory define a state’s sovereignty similarly to the way the domestic tort against trespass indirectly demarcates private property. There is a profound symbiosis between the law of occupation and the law of sovereignty, and the two evolve in lockstep. As sovereigns negotiate their external recognition and respect, they must give reasons for their demands.
None of the grounds that support the trusteeship concept suggest that states must treat the interests of all foreigners as being on a par with those of their own citizens, just as the recognition that property owners have duties toward others does not spell the end of capitalism. Observations regarding the optimal size of a democracy strongly caution against extending suffrage to outsiders or allowing free access to national resources, as doing so would undermine the opportunities of communities to pursue their own unique preferences and destroy their incentives to create communal goods such as educational and healthcare systems. Rather, the above discussion leads to the conclusion that states are obliged to seriously consider the implications of their choices for foreigners and provide at least some remedies to compensate for the loss to foreigners due to their inability to participate meaningfully in shaping their life opportunities.
Extending the trusteeship obligations must be treated with caution, not too far, not too quickly. There are serious countervailing considerations, such as the concern about the aptitude of a reviewing body such as a court to second-guess a sovereign’s policymaking, or the need to ensure that the burdens imposed on sovereigns are not excessive. Obviously, the trusteeship concept suggests that sovereigns have an obligation to mutually explore their shared normative obligations and develop the most effective domestic and supranational institutions to meet the challenges to efficiency, equity and democracy resulting from the system of sovereign states. Realistically, however, it is hard to envision a generally accepted program for action emerging “top-down.”
Nonetheless, the lack of generally accepted burden-sharing norms and the dearth of institutions must not preclude the recognition of minimal legal obligations that flow from the trusteeship concept. These minimal obligations include the obligation to take the interests of foreigners into account when formulating and implementing policies; to provide voice in their decision-making processes to all those affected by their policies; and to accommodate foreign interests if doing so is costless to the state (or even to incur costs in cases of catastrophe).
Such minimal obligations would, for example, require a food-exporting country to “give consideration to the food security situations of different importing countries” (Article 12(a) of the Agreement on Agriculture); as Robert Howse and Tim Josling suggest, that means a duty “to secure a multilaterally recognized expert opinion on food security – both to verify whether a country is truly facing a food security crisis to justify putting export restrictions into place, but also to determine the likely impacts of such measures on its trading partners, taking into account market conditions, and to adjust them accordingly.” Similarly, the minimal obligation endorses the Indian Parliament’s and Supreme Court’s invocation, when determining the proper IP protection for drugs, of the need to ensure access to life-saving drugs in the developing world outside India.
And whereas no judge has asserted a parallel theory to Coke’s with respect to the sovereign’s external limits, it is possible to trace in doctrines developed by international courts the implicit influence of the trusteeship approach, such as the general doctrine on abuse of rights or specific rights of passage through straits or through another state’s land. Such doctrines may indicate a judicial effort to ensure that countries take into account the interests of others and accommodate them at least to some extent.
To explore the implications of the external accountability of states, it is necessary to conduct theoretical inquiries into shared notions of global justice and to assess the necessary preconditions for reviewing institutions to second-guess sovereign discretion. Most importantly, though, it is important to monitor and assess the praxis, which evolves from the acknowledgement of the obligation to take others’ interests into account and to be accountable to them. As states increasingly practice the weighing of “other-regarding” considerations and explaining their choices to others, a global process of deliberation may incrementally refine and shape expectations regarding the proper balancing of interests between domestic and foreign stakeholders.
The GlobalTrust research project, funded by a European Research Council Advanced Grant (2013-2018), seeks to advance this process of deliberation by exploring the normative grounds for and implications of the trusteeship concept of sovereignty and the institutional mechanisms (such as international and national courts) that could legitimize the external monitoring and review of states’ compliance with other-regarding obligations, as well as by examining the practical implications of this approach in different areas of international and constitutional law (e.g., human rights law, international humanitarian law, investment and trade law, environmental law, etc.).