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 genuinely “public” international law. The Lauterpacht lectures have started with the hypothesis is that the long-standing quest for a rule of law in what we now call global governance can be satisfied by acknowledging and carving out the said public-law quality of international law while accommodating and integrating the recent 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 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. This is the privatisation of 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.
The result of these two interlinked trends seems to be that the public and the private spheres, the powers of the state and the corporation, sovereignty and property, remain mutually constitutive and constituted by (international) law. Additionally, the variations of capitalism, the rise and fall of state-like companies and commercialised states, the waves of deregulation, reregulation, privatisation and nationalisation continue to blur and shift the various public/private boundaries.
The book project builds on the Lauterpacht memorial lectures which Anne Peters held in 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.