International law has emerged out of (Roman) private law sources and analogies. One might call this the publicisation of private law-bits and pieces to shape a droit public européen and a public international law.
The last decades have brought about counter-trends of privatisation. First, states have radically and often under pressure by international and regional financial institutions divested themselves of infrastructure and handed over tasks and services to the private sector. This is the privatisation under public international law. Second, global markets, global corporations, and global supply chains have begun to shape not only the substance of international law but also its structure (in terms of legal subjects and legal sources/instruments). This is the privatisation of public international law.
Privatisation under international law and privatisation of international law are linked because the rise of the private sector (business), the concomitant shrinking of states, and the deep engagement of international organisations with private partners have been transforming the international legal persons themselves, the international law-making processes, and the legal outcomes, too.
The starting hypothesis is that the long-standing quest for a rule of law in what we now call global governance can be best satisfied by acknowledging and carving out the public-law quality of international law while accommodating and integrating the increasingly important private actors into global governance.
The public and the private spheres, the powers of the state and the corporation, sovereignty and property, are mutually constitutive and are both constituted by (international) law. The variants of capitalism, the rise and fall of state-like companies and commercialised states, the waves of deregulation, reregulation, privatisation and nationalisation are continuously blurring and shifting the various public/private boundaries.
The book-in-progress argues that the basic idea of public/private distinctions remains a useful analytic tool and a normative guideline for assessment and action. It leaves room for approximating justice on two complementary trajectories of iustitia distributiva and iustitia compensativa. Collapsing public/private distinctions would render the pursuit of global justice even more difficult than it already is.
The book project builds on the Lauterpacht memorial lectures which Anne Peters held in March 2017.
Anne Peters/Sabine Gless/Chris Thomale/Marc-Philippe Weller, “Business and Human Rights: Making the Legally Binding Instrument Work in Public, Private and Criminal Law“, MPIL Research Paper Series No 2020-06, 26 March 2020.
Max Planck Group on Business and Human Rights.