The emergence of the intergovernmental trust in international law

Intergovernmental trusts, or trust funds, have been around for a few decades, grounded on a proliferation of international agreements. Yet, surprisingly, none of these agreements, nor the institutional law of international organisations acting as trustees thereto, have attempted even once to set out the legal nature of these arrangements. The relevant protagonists are content to simply establish them by means of agreement on the basis of certain underlying assumptions that are taken for granted. State practice is in fact so consistent and uniform in respect of these underlying assumptions, despite the absence of formal definitions, that a claim of customary international law would be well justified; this potential for a customary nature is amply debated on the basis of the consistent practice of States in respect of trust agreements, albeit only with regard to particular characteristics. The absence of definitions by the two main actors in the trust relationship, i.e., donors and trustees, is hardly conspicuous, given that it avoids limiting and restrictively delineating the range of operations and relationships encompassed within the trust paradigm. In this manner, one is in the dark as to whether the trust relationship is governed by the international law of agency, or whether it constitutes a sui generis arrangement that lacks agency qualities altogether. Equally, if indeed of a sui generis nature, it is uncertain whether the general law of privileges and immunities applies to trusts that are not also international organisations and whether the donors owe extracontractual duties to third parties. Nonetheless, and despite the absence of a clear framework, the proliferation of trust entities in the past twenty years clearly suggests that the relevant sovereign actors form an interpretative community, in that they share common understandings about the culture and the environment within which trusts are set up and moreover interpret these underlying assumptions in a wholly uniform manner.1 Although the contemporary trust vehicle was not intended to serve merely a limited number of usages, its employment in the international sphere serves mainly the following functions: natural disasters, fiscal emergencies, long-term financial stabilisation, poverty alleviation and environmental financing.