1. The Sovereignty Not to Be Sovereign

One reason for international law's relative silence on the issue of ISFs may be that it is committed to sovereignty, understood as the default rule that states have considerable discretion, particularly domestically. This means that, in principle, it is also very much within sovereign discretion internationally how “public” a sovereign wants to be and how much it decides to outsource. This may make it an awkward role for international law to simultaneously, on account of some substantive vision of sovereignty, insist on a thicker version of “publicness.” It may be, as we will see, that a sovereign could not fully privatize itself out of existence, but at the very least most international lawyers would agree that it can probably privatize a great many functions, some of which may well come very close to what one would consider to be the state's public core. Such is the consequence of international law's pluralism and its emphasis on a wide diversity of economic and social systems. This is the central paradox of sovereignty from the point of view of international law: that it includes the sovereignty not to be sovereign, or at least not to be sovereign in the way that sovereignty may have been understood traditionally.

This paradox is no mean hurdle to a purported theory of ISFs in international law. It has long been evident in the idea of an “international law of coexistence” of regimes that may otherwise be diametrically at odds. Historically, international law has countenanced quasi-totalitarian all-absorbing states on the one hand and libertarian minimal states on the other.Footnote ²⁶ Deferral to a state's preferences in terms of domestic organization has been renewed in the wake of Third World insistence on respect for sovereignty and friendly relations between states. It is evident, moreover, in international human rights law as the branch of international law perhaps most concerned with the state's domestic organization. International human rights law's traditional unease with stipulating any standard of “public content” of the state stems, notably, from the danger of being drawn into the realm of ideological preferences.

As has been noted euphemistically, the Committee on Economic, Social and Cultural Rights (CESCR) has “adopted a somewhat ambiguous stance as regards what types of political and economic system are acceptable vehicles for guaranteeing rights.”Footnote ²⁷ Famously, according to the Committee:

In other words, perhaps wisely and prudently, the Committee retreated behind the goal (human rights), leaving the means (the sociopolitical organization of the state, including as it affects its particular public/private mix) to each state.

This is a standpoint that of course has a very historical dimension, notably the need to avoid being seen as taking sides on “ideological” issues during the Cold War. It is also revealing of a particular post-war pragmatic approach to international human rights law, for which the means themselves are neutral and only ends matter.

Nonetheless, it is a position that continues to have relevance to this day. It seeks to make the most of international human rights law's universalizing ambition whilst simultaneously clinging to international law's decentralizing and independence-respecting aspiration. It is also, one might think, a position that is better at resisting the imposition of a single, potentially hegemonic concept of the “right” division of the public and private spheres, in a context where we have reason to think that international law upholds “a very traditional view of the role of the state” and “the location of any line between public and private activity is culturally specific.”Footnote ²⁹ The CESCR's approach thus makes sense in the long term as an aspiration to allow states to experiment, in the exercise of their self-determination, with different permutations of the public and the private.

2. The Elusiveness of Ontology

From a long-term perspective, the current trend toward privatization of key state functions is both unsurprising on one level and striking on another. It is unsurprising because the state has long happily coexisted with private forms. The state, in a sense, built itself against a background where non-state actors were all powerful and frequently competing with it; it did so in a context, in fact, where the state itself, or what would become the state, was often little more than a non-state actor among others, at best a primus inter pares, vying for precarious domination over territory and subjects. Moreover, the state also emerged with, and thanks to, powerful private actors both domestically and internationally: banks, trading companies, private prisons, militias, corsairs, etc.Footnote ³⁰ In other words, the current phenomenon of privatization of public functions may merely mark a reversal to an earlier, much fuzzier picture marked by chronic confusion between the public and private spheres. This cautions against too ontological a notion of what might be ISFs.

Indeed, one the central challenges of arguing for ISFs may simply be skepticism that anything is “inherent” about anything and, specifically, about the state as an evolving and fluid construct, let alone that international law could capture that dimension.Footnote ³¹ To be sure, skeptics will concede, certain features may be more commonly or at least historically associated with governments, but there is a risk of confusing what is merely habitual and what is inherent. Theories of ISFs simply commit us to a fundamental theory of the state that has become ever harder to justify precisely in a pragmatic age where the results (to be evaluated on a case-by-case basis) matter more than the responsible actor (in that respect, the argument goes, a good corporate actor will always be preferable to a bad sovereign one). Worse: theories that unduly defer to the state can become a justification for the status quo in a context where, inherent or not, it is hardly as if the state has always discharged its functions adequately.

To be clear, then, there is almost no function that might not conceivably be, and that has not historically been, exercised by actors other than states, including occasionally private actors. At the same time, and seen against the background of the last century, it is also true that the phenomenon of privatization of state functions is unexpected because it goes against what had been understood to go to the heart of modern projects of state construction, namely the centralization of powers and functions in the hands of the sovereign. For much of the nineteenth and twentieth centuries, prisons, the police, and the military were brought firmly under the control of the state almost everywhere. And for much of the decades following World War II, a large number of welfare services were rolled out in systematic fashion by the state. That there may retrospectively have been nothing natural or inevitable about this process of state intervention changes nothing to the fact that it became embedded in the experienced reality of the constitutional state, and is the immediate background against which privatization occurs.Footnote ³²

3. International Law's Own Production of Privatization

Finally, it is worth noting that, paradoxically, the phenomenon of privatization occurs not despite the state but often very much with its active participation. It is almost as if, at times, states were actively involved in the undermining of their own core sovereignty, selling out, as it were, to private bidders keen for a share of its monopolies. This cautions against too simplistic an assumption that privatization is merely corrosive of sovereignty when it can, in fact, be conceived as a deliberate attempt to extend and demultiply in the process of transforming it.Footnote ³³ Privatization can for example be seen as a way of allowing sovereign power to escape the strictures of public law—a sort of pernicious but effective “regulatory workaround.”Footnote ³⁴

Relatedly, and further complicating international lawyers’ quest for an international legal theory of ISFs, is the fact that privatization is hardly a phenomenon that has arisen outside or independently of international law itself. Whatever normative resources can be found in international law, as we will see, to make the case that some functions at least ought to be exercised by the state, must be weighed against the many ways in which international law has if not precipitated at least amply enabled privatization over the last few decades and, in the process, helped desacralize the notion that any function is inherently sovereign. That process is itself the consequence of a broader orientation toward private ordering since the end of the Cold War, away from an insistence on publicness earlier associated with such projects as the New International Economic Order.

The United Nations has adopted a somewhat ambiguous position on privatization. On the one hand, the UN in its peacekeeping guise has engaged in extensive efforts to assist weak or collapsed states to reinstate them as sovereigns in good standing. Rebuilding includes measures such as disarmament, demobilization, and reintegration that specifically target the multiplication of private militias and rebel groups, including pro-state but private “paramilitaries,” with a view to allowing the state to reclaim its monopoly of the legitimate use of force.Footnote ³⁵ At the same time, given the opportunity, the UN did not hesitate to privatize key industries in those environments, such as Kosovo, where it was effectively in a position to govern.Footnote ³⁶ Separately, the UN has repeatedly been tempted by the idea of privatizing its own peacekeeping operations. Former UN Secretary-General Kofi Annan hinted that he would have been tempted to dispatch a private force to Rwanda to stop the genocide and Executive Outcomes has boasted that it would have been able to do so.Footnote ³⁷ As for the Office of the UN High Commissioner for Refugees (UNHCR), it has emphasized the positive potential of including private sector actors in refugee responses.Footnote ³⁸ Even transitional justice initiatives increasingly seem to rely on private donors and mediation.Footnote ³⁹

Some components of the UN family have even less ambiguously channeled neoliberal policies of privatization. This is true particularly of the World BankFootnote ⁴⁰ and the International Monetary Fund.Footnote ⁴¹ It is the World Bank, for example, that, for a time at least, encouraged “full cost recovery” from users and backed projects to contract water systems to large multinationals.Footnote ⁴² Privatization has, moreover, been promoted as essential to the realization of the sustainable development goals.Footnote ⁴³ More generally, international trade and, particularly, international investment law have been associated with an unmistakable trend toward normalizing the adoption of public functions by private actors. They have allowed regulatory disputes to be resolved by private arbitrators in ways that betray a fundamental “retreat from adjudication” and lead to “the granting of a generalized competence to private arbitrators to define the scope of the public sphere and, as such, the uniqueness of the juridical sovereign.”Footnote ⁴⁴ Although investment arbitrators will concede in passing that certain policy decisions (for example, Argentina's changes to the currency exchange system or its taxation policy) are inherently sovereign in that they reflect fundamental national policy, they also in the same breath emphasize that they have jurisdiction to examine whether even general economic policy has a bearing on protected private investments.Footnote ⁴⁵ Indeed, it has been argued that “the significance of international arbitration for juridical sovereignty is its privatization of the authority to define the very concept of the public sphere.”Footnote ⁴⁶

Any international legal theory of ISFs will thus have to contend with the fact that international law can certainly not claim innocence from the trend toward privatization which it has both encouraged domestically and, in fact, duplicated internationally. In fact, the production and adjudication of large parts of international law have themselves already become thoroughly privatized.Footnote ⁴⁷ The challenge is therefore to search for resources within international law to limit privatization, even as international law has been thoroughly implicated in the dismantling of the state.

1. The Limits and Potential of Domestic Approaches

Several countries have historically produced conceptions of inherently governmental functions. In France, a country with “a profound cultural preoccupation with the state and its purposes,”Footnote ⁴⁸ the notion of “fonctions régaliennes” is central to the idea of the French state. It describes the pursuit of security, both internal and external, the definition of the law and the rendering of justice, as well as key elements of economic sovereignty (printing money) as being inherently governmental. In the United States, a country which by comparison with Europe, has been quite willing to engage in outsourcing and is not traditionally based on a constitutional reification of ISFs, concerns have nonetheless long arisen about the problematic character of some types of privatization, notably of prisons. The most significant effort to define ISF has manifested itself through a relatively narrow public administration lens. Federal agencies seeking to engage in public-private competition come under a series of procedural obligations to ensure that the activities selected for that purpose are suitable for it.Footnote ⁴⁹

These domestic traditions are significant in that they point to efforts by at least some states to highlight what, for their purposes, constitute ISFs. The fact that they have done so in occasionally broadly similar terms suggests that something more is at stake than merely the playing out of national peculiarities. The comparison of European and North American approaches suggests at least an interplay between constitutional protections and privatization; a non-instrumentalist concern with the value of the state performing certain functions; and a desire to insulate at least certain functions from excessive privatization. These traditions can be read in light of the occasional case law that has sought to tackle ISFs from a fundamental constitutional, particularly rights-oriented, perspective. This is the case of a landmark Israel Supreme Court judgment, which argued that prison privatization was in and of itself “a violation of the right to dignity.”Footnote ⁵⁰ Justice Proccacia noted, in particular, the unsuitability of a “private enterprise” whose “entry into fields that are clearly areas of sovereign activity is motivated by private considerations of profitability.”Footnote ⁵¹ In such a situation, “the moral and ethical basis underlying the exercise of sovereign power is undermined.”Footnote ⁵²

But domestic approaches also remain essentially limited for our purposes. First, we have no reason to think that they are particularly connected to international law. There is certainly little sense in European or U.S. practice that ISFs result from some higher international injunction. Even the Israeli Supreme Court judgment, based on human rights as it was, is merely an interpretation of the Israeli Basic Law and contains no reference to international human rights law. Second and as a result, domestic criteria of ISFs tend to be quite self-referential and some at least are obscure about their underlying rationale. They measure each state against a standard manifested by the state itself, in ways that will often seem circular. By the yardstick of the French centralizing state, U.S. privatization of prisons and war fighting may indeed not find favor, but each state will find itself to be a paragon of what a state ought to be, in a context where sovereignty has always been understood to entail a large degree of self-definition. Third, domestic theories of ISFs appear to be largely incommensurable. Despite their family resemblance, they are based on quite different visions, even though those visions are not always fully articulated.

Hewing closely to domestic theories, therefore, precisely at the time when the state is under renewed threat from globalization, condemns one to a patchwork of theorizing that often barely conceals its national and peculiar origins, a provincial response to a global phenomenon. It puts any theory of the essence of the state at a standpoint disadvantage (that of methodological-nationalism), where advocates of privatization have long understood the benefits of being able to deploy a transnational and global discourse unrestrained by domestic traditions. What may be needed to fully develop a theory of ISFs is to break the mold of the domestic and see ISFs from outside rather than from within the state.

2. The Problem with Pragmatism

The argument for and against privatization has often been framed in largely pragmatic terms that profess no a priori preference for certain functions being implemented by the state. Such an approach merely purports to contemplate how efficiently various actors might be at providing certain services. The critique of privatization has sometimes mimetically adopted that angle as well. For some, the trouble with “tactical privatization” is that it allows public actors to circumvent public strictures and engage in behavior they could not otherwise engage in;Footnote ⁵³ others invoke the higher propensity of private actors for causing harm and violating human rights. Such approaches are consonant with the pragmatic notion that we would want sovereignty (and ISFs with it) only to the extent it can achieve particular goals—anything else might appear to be a pure fetishism of power for power's sake.

No doubt there will be the relatively easy cases where the privatization of a water utility, for example, has demonstrably led people to lose access to water. One can point to certain characteristics of privatization that seem to reoccur over time and raise chronic concerns, leaving the unpleasant impression that the problem lies not in the implementation but the very idea. But such arguments will be vulnerable to the counterargument that it is not privatization in itself that is the problem, but merely this particular instance of privatization, and that if only it had been carried out differently (including, perhaps, by adopting more of a human rights framework) then the supposed benefits of privatization could have been obtained without those unfortunate consequences. The argument may also be recast as merely one of relative ability: states may be far from perfect, but, overall, they are better at complying with human rights than private actors (or vice versa).

This empirical approach, useful as it may be, also risks quickly falling into the trap of a mere weighing of utility and of conceding too much to the pragmatic vernacular of technocratic governance. It will always be vulnerable to contrary proof in general or in specific cases. In that respect, the argument that privatization “does not work” may in fact furnish arguments for more privatization by conceding that efficiency is the measure of whether a function should be inherently sovereign or not (and vice versa). In short, the pragmatic, risk-oriented argument against outsourcing can work both ways. Moreover, it is for the most part silent about what ultimate social good is to be served by efficiency. It does not really provide a solid rationale for ISFs as much as an argument for caution in outsourcing.

The more significant argument, therefore, may well be that we should want certain governmental functions to be assumed exclusively by states even if it were proved, in general or in particular cases, that by the standard of some pure efficiency matrix, private actors were somehow better at delivering the goods.Footnote ⁵⁴ This suggests that one ought to be able to draw a firmer line,Footnote ⁵⁵ albeit one still respectful of both sovereignty and pluralism. Specifically, and in their most abstract form, ISFs can be understood as premised on a strong a priori preference for certain functions being discharged by public actors. This allows for the possibility that in some circumstances, of course a good private actor might be preferrable to a bad public one, but simultaneously suggests a preference, all other things being equal, for certain functions being handled by states.

Alon Harel, for example, is associated with the line of theorizing that has criticized law and economics’ tendency to level all potential policy outcomes based on efficacy to the detriment of the identity of actors. He instead suggests ways in which consideration of the proper agent to discharge any task is based on “deeply held convictions (and legal doctrines) requiring that certain tasks ought to be performed only by public officials irrespective of their efficacy.”Footnote ⁵⁶ Similarly, Chiara Cordelli has put at the heart of her argument against excessive privatization of the state the question of authority to make decisions about the common good and the need for such decisions to be made by agents who are not only authorized but act in the name of the collective will and “have the capacity, both moral and factual, to do whatever it is they are authorized to do.”Footnote ⁵⁷ George Katrougalos has argued for a “necessary connection between some public functions and the democratic principle per se, which imposes upon the Government the ‘duty to govern’” because no amount of “ex post control [will be] sufficient to safeguard constitutional goals of the magnitude and importance of public order and security.”Footnote ⁵⁸ In such defenses of ISF, the contingency of efficiency is transcended by an appeal to the fundamental dimension of states exercising certain functions themselves.

3. The Necessary Ambition of an International Theory of ISF

If nothing else, this stresses the fundamentally principled, rather than consequentialist, nature of the present endeavor, as well as its normative, rather than ontological, dimensions: there are no ISFs in the absolute; only functions that we would want to consider such as part of a defensible theory of what the state should be, for the purposes of international law. An international theory of ISFs gives expression to the intuition that “there is a way of social life that cannot be reduced to the aggregate of the purposes that people may want to attain, a way in which the exercise of authority over a territory should be evaluated irrespective of its outcomes,” and that involves something like collective life and a project of self-rule.Footnote ⁵⁹ As such, a strong theory of ISFs also provides a natural conduit for privileging a specifically legal approach, as opposed to one that would delegate questions of outsourcing to policymakers naturally more inclined to evaluating costs and benefits.Footnote ⁶⁰

The argument for contemplating a category of ISFs therefore often displays a strong, a priori categorical character. It is not so much that such functions exist in the absolute, as a naïve, ahistorical vision might suggest, but that, it is claimed, one cannot avoid turning one's mind to the question if one is ever to fundamentally assign limits to privatization. As Paul Verkuil put it: “To decide if privatization has reached its limits, we must know whether ‘inherent functions’ of government are being delegated. . . . But the inquiry cannot be avoided.”Footnote ⁶¹ The inquiry is a normatively necessary one even if it has no single good answer. If nothing else, the state to exist must delineate itself against a concept of “what is not the state.” The tenor of that dichotomy may change over time, but the dichotomy remains, in at least its structuring role. This allows one to move beyond an elusive ontology to retain at least a potentially robust—albeit relational—concept of stateness as opposed to non-stateness.

The problem is that outside an instrumental theory of ISFs, the effort to delineate core public functions on pure public law grounds is, as we have seen, often at risk of a certain circularity (“ISFs are those functions that ought to be assumed by the state because such is its nature”). Alternatively, it may rely on something comparatively elusive and abstract that is vulnerable to the accusation that it has no grounding in actual legal practices. Whether one manages to develop a powerful theory of ISFs, then, may paradoxically depend on one's ambition. Theories that lower their sights too much may end up having trouble challenging the pragmatic, market-oriented competition, because they are at their weakest when dealing with it on its own terms. This is one of the central intuitions and appeals of the Alston report on privatization and human rights, which will be discussed later in this Article—namely that human rights should seek to “reclaim the moral high ground” when it comes to privatization in a context where that ground “is too often yielded to the privatizers.”Footnote ⁶²

By the same token, a strong project of ISFs is one that cannot simply dogmatically decree that certain functions should be sovereign on the basis of a sentimental preference for a particular form of sovereignty. Instead, it must adopt an approach that is simultaneously normative (what would we want ISFs for?), interpretative (how can we understand some international legal developments as already contributing to the building over time of a distinctive sense of the state as a public persona in international law?), and prospective (what would it mean to conceive of international law as that legal order which is based, ultimately, on the fundamentally public character of certain functions of the state?). The rest of this Article examines some ways in which one might develop a specifically international legal theory of ISFs, specifically looking at how one might deduct ISFs from the finalities of the international legal system rather than states’ self-projection. Taking its cue from domestic and jurisprudential approaches, it distinguishes between theories of ISFs grounded in the “horizontal” demands of the interstate system and theories extrapolating the “vertical” need for ISFs from the demands of human rights.

1. A Thought Experiment: Undoing the State

In this Subsection, I want to suggest, ad absurdum, a dramatic illustration of what might be considered an ISF in international law, namely a function whose discharge is essential to a state being considered a state at all. What I have in mind are functions that are treated as so central in and to international law that they have become embedded in the very definition of what it means to be a state—such that a state could not renounce exercising them without renouncing its sovereignty. This exercise will at least help develop an extremely minimalistic basis for the theory, one that allows considerable leeway when it comes to deciding the permissible extent of governmental privatization. The hypothesis aligns with the intuition that international law normally grants significant discretion about the particular mix of the public and the private each state strikes; but that it might dramatically raise the alarm beyond a certain level of privatization, when a state reaches the point where it is on the verge of conceptual collapse.

A first idea that comes to mind, in this context, is that the very criteria for statehood, since at least the Montevideo Convention, are that the state should have not only a territory and a population but, crucially, a government. In other words, even if they do nothing else, states do and should govern. This, admittedly, is a vague notion, compatible with all kinds of organizational arrangements, but it does point, crucially, to a minimal “duty to govern” in international law, if one is to be considered a state at all.Footnote ⁶³ One approximation of what governing means in this context is that one at least has the ultimate authority to decide what gets outsourced and under what conditions. If certain governmental functions are to be outsourced, it should always be done by delegation and in ways that are reversible. As Simon Chesterman put it, moreover: “At the very least the responsibility to determine what is and is not ‘inherently governmental’ should itself be an inherently governmental task.”Footnote ⁶⁴ A state could thus conceivably delegate everything, except the ability to delegate, so that all sovereign functions would ultimately still be traceable back to it. That would of course be a vanishingly thin state, but conceivably still enough of one for international law purposes.

What would it take, then, for the state to fail to honor even that minimum content of publicness required by international law? For a state to shed its statehood, it would have to forsake its very governmentality in the process of outsourcing it. The image here is that of a state that deliberately scuttles itself. Let us take an extreme example to illustrate the argument. If a state were to decide to “incorporate” itself and sell its territory to a private actor, for example, one can see how from the point of view of international law something would have gone seriously amiss. In essence, the state would have sawed the branch on which it was sitting, depriving itself of the very attributes of sovereignty. A state that had sold out entirely to private interests, that did not even claim to be engaging in public functions might thus be seen to have relinquished a claim to statehood.

This may seem an implausible scenario, although upon closer consideration it is not that far-fetched. It is not far off, for example, from the case of so-called “failed” or “collapsed” states”Footnote ⁶⁵ that have become “privatized” in the most brutal sense; states in which, for example, there is simply no public interest distinct from the pursuit of profit by various private militias and criminal groups. Such states are not only evanescent from the point of view of their continued existence; they are also thoroughly incapable of discharging any of the basic obligations that international law assigns to them.Footnote ⁶⁶ This could also describe the situation of mafia-states,Footnote ⁶⁷ where the government has become so gangrened by private corruption that it is very difficult to see the entity in question as, in fact, a state that governs in any meaningful sense of the term. It is not entirely clear in such cases whether the most problematic aspect in such states is their criminalization or their privatization specifically, but the two seem to go hand in hand.

There is of course considerable inertia in the recognition of states as such, and no known case in the practice of international law where a state had been derecognized because it had ceased to govern,Footnote ⁶⁸ although former UN Secretary-General Boutros Boutros-Ghali once deplored that the UN Charter had no mechanism to identify such scenarios.Footnote ⁶⁹ In practice, international law does not seem to be very demanding when it comes to displaying the bare appearance of governing, often happy to rely on formal rather than substantive criteria, and the possibility that the state might continue to exist for a while even when its authority has been largely hollowed out.Footnote ⁷⁰ But ours is a hypothetical scenario from which one can detect the premises of a theory in which states would, short of not governing at all, potentially not govern enough, i.e., by not implicating themselves sufficiently in the affairs that they have, through international law, been mandated to invest themselves in.

It is of course true that a state “collapsing” into violent chaos or rotting from within as a result of criminal corruption, is hardly the same thing as a state privatizing in excess. Cases of failed states are often described as involving a prolonged absence of any sovereign and the inability to control territory, a situation that is still qualitatively different from the outsourcing of activity to the private sector. But privatization can be understood, following Chiara Cordelli's philosophical treatment of the question, as itself involving something akin to a pre-civil “regression to the state of nature.”Footnote ⁷¹ Indeed, “failed states” have been identified specifically as those that “find themselves incapable of fulfilling basic regalian functions, such as order maintenance, security, justice, defense and international commitments, etc.”Footnote ⁷² and those characterized by a more fundamental “regalian weakness.”Footnote ⁷³

The most likely and more difficult scenario, however, is one where the state retains the trappings of statehood and is still nominally in charge, even as it is increasingly a hollow trunk. Extensive privatization can mask the fact that the state has ceased to be the delegator and is, in effect, a state only in name, a de facto private entity robbed of the ability to arbitrate any residual distinction between the public and private spheres. Or it might manifest a kind of loss of sovereign dignity, understood as the implicit obligation to maintain a certain sovereign decorum and to not, for the sake of the international system, engage in behavior ‘unbecoming’ of a sovereign.Footnote ⁷⁴ In what cases, however, might this hollowing out of the state become identifiably problematic for international law?

2. Special Cases of Mutual International Legal Obligations?

In this Subsection, I want to reinforce the idea that international law has classically gone somewhat further than prescribing a minimum of government based on a bare understanding of statehood, and has had a vested interest in the way—specifically, the public way—states discharge certain functions. This is notably the case of functions that are exercised inter se—between states—and that therefore involve a mutual interest in their discharge. In such cases, the inability to comply with certain minimum international obligations as a result of privatization creates a particularly keen international regulatory interest. The suggestion is that interstate relations are a special case of the larger problem of how far a state can go in outsourcing certain functions and a distinct contribution that international law can make to our understanding of ISFs. This is by opposition to purely internally defined sovereign functions for which other states can hardly be said to have a legitimate interest in how other states go about the business of allocating between public and private regulation. It is also distinct from, although not entirely unrelated to, international definitions of the domaine réservé where ISFs are understood as functions that other states should not usurp or hinder, as in the Tallinn Manual on cyber operations, for example.Footnote ⁷⁵

Again, let us take a counterfactual, hypothetical scenario. Imagine that State A has just elected President X who is a strident neoliberal advocate of shrinking the state. Unlike some of his predecessors, X thinks that privatization should not stop at Regalian functions and envisages a radical libertarian utopia in which even functions that were traditionally considered as sovereign should systematically be outsourced to the private sector. As part of a raft of new measures being announced publicly, President X dismisses the entire diplomatic corps and abolishes the Ministry of Foreign Affairs. Instead, he decides that, henceforth, A's foreign relations will be handled by a private corporation. A well-known public relations firm wins the contract following a public bidding process and proposes to take charge of the country's foreign relations. It devises an ambitious plan by which its senior partners will be designated as “ambassadors” for speedy approval by the receiving capitals.

Although nothing that extreme has been attempted, privatization of diplomacy is an issue that has received attention and is not entirely implausible.Footnote ⁷⁶ At any rate, other states are now faced with a dilemma. What should they do with these new types of ambassadors? Should they bow to the idiosyncrasies of A, conceding that whilst it may be unheard of to outsource one's foreign relations to a corporation, no rule of international law actually prohibits this? Should they do so, in fact, precisely out of deference to A's sovereignty and its uncontested ability to privatize core functions if it so wishes? Or should they push back on the basis that there is something so uncommon, so unheard of as to put in question one of the very fabric of interstate relations? But if so, what exactly is involved and on what basis would one go about defending a certain international public status quo? And how might one distinguish between merely highly unusual and illegal behavior?

There is, needless to say, no obvious answer to these questions. Such a policy of extreme privatization might appear so radically new as to perhaps offend some long dormant but perhaps too-obvious-to-be-mentioned tenet of the international legal order, a kind of meta-norm about the necessarily public character of the state; or it might not. Those wary of the idea of a non liquet in international law may suggest that, either way, international law must have some default position that can be inferred from first principles. Privatizing one's diplomacy might seem “undiplomatic” and counterproductive, although that is likely to be contested. It might be of course that the privatized discharge of diplomatic functions that ensued was not only subpar but deeply problematic because fundamentally beholden to private interests. At any rate, it has long been recognized that states may refuse accreditation where “the status, conduct or character of the person sent is unsatisfactory.”Footnote ⁷⁷ There are cases of states refusing to accredit ambassadors, for example, on account of their perceived hostility to the host state, and it is not inconceivable that the international community would react to State A's ruthless privatization initiative by simply offering a barrage of failed accreditation. Practice would tell, although the discussion would no doubt be a fraught one.

On the one hand, it seems hard to claim that other states have a sort of acquired right to State A conducting its foreign relations in the time-honored and characteristically public fashion of international society. Moreover, it is not immediately clear what interest of third states is being affected, except an interest in a certain public status quo. The private “ambassadors” in question are not necessarily accused of abusing their office, merely of being employed in a highly unusual way and of not having the sort of status that is normally associated with persons of their function. But it could be argued that they would gain such a status merely by being accredited, thus laundering their private character through the public cogs of international law, such that the failure to accredit them is the problem more than their status as such. In short, the mutual-obligations hypothesis as grounds for a theory of ISFs is fragile because it is not clear that mutual expectations can sustain it.

On the other hand, this sort of scenario does point to a certain habitual and communal interest in the discharge of certain functions by the state. Just as it has been said that a “failed state” is one that is “utterly incapable of sustaining itself as a member of the international community,”Footnote ⁷⁸ it is likely that a functioning state is one that exhibits the ability to sustain itself in the eyes of other sovereigns, including by honoring certain expectations. This might include the ability to publicly discharge certain key internationally mandated functions: in that respect, the organization of the diplomatic service is certainly both a domestic and an international exigency. This only underscores the difficulty of coming up with a theory of ISFs in international law and the need to look beyond traditional images of both the domestic and the international to sustain one.

3. The International Law of Immunities as a Precedent

One striking early lead in that respect is provided by the international law of immunities, a classic case of interstate obligation. The international law of immunities has long been focused, for its own purposes, on the determination of what are, fundamentally, sovereign functions at least in the relations of states to each other. The separation of state functions between those exercised de jure imperii and de jure gestionis and the fundamental disaggregation of both that resulted from the switch to a restrictive theory of immunities, provides a first approximation of those functions that by their very nature fall within the state's purview and those that it can carry out but in a position that is functionally equivalent to that of a private actor. The question, as Lord Wilberforce put it, is whether “the foreign state has acted in exercise of its sovereign authority, that is in public law, or like a private person, that is in private law.”Footnote ⁷⁹ The international law of immunities, albeit mostly as reflected in domestic precedents, thus provides us with both an initial theory of what functions are inherently sovereign and a first tentative list of such functions.

For example, U.S. courts have found that the Foreign Sovereign Immunities Act of 1976 will “attach only to inherently governmental or ‘public’ acts of a state,”Footnote ⁸⁰ such that “the ultimate inquiry is whether the conduct or transaction is of an inherently governmental or private nature,”Footnote ⁸¹ with a particular emphasis on “core functions.”Footnote ⁸² Over time this has led to a variety of functions being considered fundamentally sovereign for the purposes of honoring immunities, including waging war and defending the state;Footnote ⁸³ legislation;Footnote ⁸⁴ the treatment of aliens;Footnote ⁸⁵ the regulation of exploitation of natural resources;Footnote ⁸⁶ or the regulation of the market as opposed to participating in it “in the manner of a private player.”Footnote ⁸⁷ It has also been noted that “the enforcement of law, especially of penal or other public law, by mandated public authorities is an exercise of sovereign authority par excellence. It is an act inherently governmental in character.”Footnote ⁸⁸

The international law of sovereign immunities’ parsing of certain functions as inherently sovereign is then prolonged through the related analysis of immunities applying to agents of the state and the question of whether certain acts were accomplished in the pursuit of official functions. The idea that criminal acts under international law or violations of jus cogens cannot be part of the exercise of state functions for the purposes of criminal law immunity,Footnote ⁸⁹ in particular, suggests a contrario that ISFs cannot extend to such acts. Also of interest is the question of whether hybrid public-private or even purely private actors may be entitled to immunities in certain circumstances which, as it turns out, may well hinge on whether they are exercising ISFs. The application of the American doctrine of derivative immunity to private actors operating “in the shoes of the sovereign”Footnote ⁹⁰ suggests that, as far as some national practices of immunities are concerned, what matters is the function rather than the identity of the actor. This dissociation between function and agent, then, tends to validate a view of privatization as ultimately not “undoing” the public character of an activity so long as it is exercised de jure imperii.Footnote ⁹¹

The strength of a vision of ISFs based on a study of the patterns that emerge from the international law of immunities is that such law is structured by strong mutual expectations, a high degree of practice and a large consensus: states recognize in others what they see in themselves as inherently sovereign. This is living proof, moreover, that there is nothing impossible about defining ISFs, something that international law has long engaged in, albeit for quite specific purposes. The limitation of outlining a theory of ISFs based on the branch of international law dedicated to immunities, however, is that it provides at best a first approximation of what ISFs could be. The international law of immunities tells us that states will grant immunities to states in the exercise of functions that are understood as inherently sovereign, but this is more an analytical than prescriptive category: it merely draws consequences from the inherently sovereign character of certain functions rather than it mandates or justifies that they be carried out in a certain way. Moreover, what it recognizes between states as inherently sovereign may not easily translate into prescriptions that can be implemented within the state. Finally, in focusing on the nature of the acts at stake rather than the agents, it is in fact quite agnostic about whether a sovereign function is exercised by a public or even a private actor.

1. A Special Case Within the Special Case? Regulating the Monopoly of the Legitimate Use of Force

Evidently, the monopoly of legitimate force has long been central to the definition of the state from within as it were, and the history and sociology of state construction is rife with references to how “war made the state.”Footnote ⁹² But it is also arguably central to international law, which has long sought to ensure that the monopoly is, in fact, guaranteed and protected internationally.Footnote ⁹³ The right to engage in war, in particular, was long the object of struggles in the Middle Ages. The rise of the state is co-substantial with the idea that states have the monopoly of resorting to war and that, by implication, private wars are prohibited.Footnote ⁹⁴ International law is very much embedded in and reproduces that strong preference for what one may understand to be intrinsically international legal reasons linked to the maintenance of a certain order and stability. For example, Emer de Vattel insisted that “it would be too dangerous to abandon to each Citizen the freedom to do himself justice against foreigners. A nation would not have one of its members be able to bring it into a state of war.”Footnote ⁹⁵ This right, therefore, “can only belong to the body of the Nation, or to the Sovereign that represents it. It is undoubtedly among those without which one cannot govern in a salutary manner, and which are referred to as Rights of Majesty.”Footnote ⁹⁶

Specifically, and when it comes to international relations, the jus ad bellum is typically understood as applying only to states in ways that caution against having the decision to go to war in any way mediated by private entities. Only a state can commit aggression, a dubious privilege but one that in a sense also suggests that the power to use force—be it wrongly and illegally—is strongly vested in sovereigns. The idea that the jus ad bellum could in any way be privatized has given rise to strong concerns. These have, so far, been mostly expressed in the language of Just War Theory as part of a renewed interest with “right authority” that strongly overlaps with lawyers’ own interest in ISFs. The concern is that privatization can “skew the application of . . . ancillary jus ad bellum principles” such as last resort, reasonable chance of success, or proportionality, typically in the direction of making it relatively easier for states to engage in aggressive war.Footnote ⁹⁷ Crucially, the insistence that the state keep the upper hand on any decision process implicating the jus ad bellum is not a result of a domestic concern, but very much of a deeply embedded systemic demand of the international legal system itself.

This still leaves open the possibility that, although private actors are not allowed to wage war on their own behalf, they may be actively recruited to wage war for sovereigns. Once private wars were outlawed, the fact that wars were henceforth decided by princes did not mean that they had to be waged by them or by troops that would have had a marked “public” or even national character. Vattel himself, needless to say, had nothing against the lucrative employment of Swiss mercenaries and even defended the possibility on the basis of the consent of the Swiss sovereign and the freedom “of all free men to joint whatever Society they please and where it finds it advantageous to do so, to make common cause with it, and espouse its quarrels.”Footnote ⁹⁸ In fact, the Helvetic confederation had benefited greatly in terms of its own security from the experience gained by its men at arms in the wars of others. The practice of contracting privateers also persisted on the High Seas until quite late, with lettres de marque essentially acting as licenses granted to private vessels to attack and capture enemy ships. Oftentimes, formal commissions were given to the “corsairs” and Hugo Grotius famously defended the practice in De Iure Praedae.Footnote ⁹⁹ Although from the sixteenth century onward, it was governments that licensed privateers as a way of complementing their military might, commissions for private wars were not unheard of.

Nonetheless, the nineteenth century did see the emergence of a number of international legal efforts to further tighten the public monopolization of the use of force, particularly on the High Seas, an area ever-receptive to international regulation. Several states showed the way by renouncing the use of letters even when at war with other states. The Congress of Paris at the end of the Crimean War then adopted the Paris Declaration of 1856 effectively proscribing privateering.Footnote ¹⁰⁰ As Sir Geoffrey Butler and Simon Maccoby point out, “to do this was to lay it down that no part of the belligerent's war right of search and capture at sea should thenceforward be deputed to armed forces not under the direct and immediate control of the belligerent state and professionally officered and trained.”Footnote ¹⁰¹ This understanding was confirmed by the Oxford Manual on the Laws of Naval War.Footnote ¹⁰²

More interestingly for our purposes are some of the arguments that were used to do away with the practice, which are at times eerily reminiscent of those used in today's debate on the war privatization phenomenon.Footnote ¹⁰³ Some clearly tended toward an emphasis on the assertion of sovereign monopoly over the use of force as an essential condition of international stability in and of itself. For example, private letters of marque, which had originally been granted to private parties to redress real or perceived “denials of justice” through a form of reprisal, were the first to be phased out. The perception was that allowing privateers to prey on foreign private ships brought little by way of military benefit to states giving the letters and might create interstate conflicts where there had been none. Instead, letters of marque could only be granted as an extension of states’ own war efforts. Moreover, several states insisted that letters de marque could only be given to one's own citizens, essentially “nationalizing” the practice (those who were not nationals of the power that had given them letters would then often be treated as pirates by other nations).

In essence, “the rise of national states, with a new consciousness of [the] duty [to press the claims of individual subjects against foreign states], by force if need be, . . . eventually made unnecessary any reliance upon individual self-redress.”Footnote ¹⁰⁴ One of the arguments at the time was that privateers remained for too long outside the reach of the state and therefore could ultimately not be controlled. In distinguishing between corsaires and “corps francs maritimes” (private crews and ships incorporated in the navy in time of war), it was emphasized that corsaires were not part of official forces, depended only upon themselves and were not amenable to military discipline. So much so that “the sovereign, whoever it may be, is no longer free, in fact, to apply only if it wants to this ancient and necessary principle of international law, according to which things captured in war belong to the state, and not the captor.”Footnote ¹⁰⁵

In many ways, therefore, the outlawing of recourse to the letters of marque was the continuation of the long-term trend toward reinforcing the public character of war, extending to who might participate in any given war, albeit under a state's authority. It was to be explored anew many years later, notably with the beginning of the decolonization era, in relation to mercenarism. The concern was with the fact that mercenarism, particularly the kind that was beholden to shadowy private interests, might, according to the draft International Convention against the Recruitment, Use, Financing and Training of Mercenaries, “violate principles of international law such as those of sovereign equality, political independence, territorial integrity of States and self-determination of peoples.”Footnote ¹⁰⁶ The UN Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination proceeded for many years from such assumptions. Mercenaries had no business using force whether they did so out of their own entrepreneurial initiative or with the backing of a state which engaged, through them, in action that would certainly not be allowable if it were conducted by its own troops. In the 1990s, privatization was seen as the problem in itself and the Working Group rapporteurs developed a strong critique of the neoliberal moment as it began to express itself through the development of private military and security companies.Footnote ¹⁰⁷

2. Concerns with the Humanitarian Impact of Violence

For both corsaires and mercenarism, however, one can detect an evolution over time away from the fixation on the jus ad bellum and toward a more humanitarian concern with the quality of private violence. By the late nineteenth century, the effort to outlaw private capture on the High Seas came to be explicitly connected to emerging humanitarian conceptions of war as arising only between sovereigns, and therefore excluding private citizens. This was particularly in response to the fact that privateers tended to prey on private property as a result of the international law on capture, which effectively incentivized harmful behavior against non-combatants. Affirming the distinction between participants and non-participants in war, by contrast, increasingly required international law to further purge the international stage of bellicose private opportunists on the High Seas who endangered the orderly and humane pursuit of war.

Émile de Laveleye, a professor at the Université de Liège, published an article in 1884 in which he complained of the English refusal to prohibit capture arguing that it was based on a conception of war as a “state of conflict . . . not only army against army, but citizen against citizen” in which it was “perfectly admissible that individuals of the contending countries should be allowed to employ all means to do each other the utmost possible harm.” This “barbarous” practice characteristic of the Middle Ages flowed directly from England's defense of the “right of capture.” Contra that vision, he promoted one in which “the state of warfare only exists between the armies, who are expected to respect the life and property of all peaceful inhabitants of the enemy's land.”Footnote ¹⁰⁸ The law of sea warfare ought therefore to be normalized and aligned with the more humane regime of war on land, one in which the reins of violence were more tightly and predictably vested with sovereigns. This is on some level a familiar humanitarian theme, but it is less common to see it tied explicitly to the ongoing delimitation of the public and private spheres in international law.

The ambiguity of this argument is that it was not directly clear why prohibiting the capture or the destruction of private property would actually require the prohibition of privateering. Corsaires might presumably still have been instructed to only target public and military property, and obliged. But one may speculate that there would have been less incentive in terms of prize in such a scenario, and that the very political economy of capture was based on for-profit actors pursing (and harming) private interests. Indeed, a specifically humanitarian clue for not entrusting private actors with the pursuit of violence is provided by one commentator to de Laveleye's article, who explained that:

In other words, inhumanity was seen as flowing from the very private character of violence in a way that is very evocative of the argument for ISFs.

A similar evolution seems to have taken hold over time in the much later context of mercenarism. The Working Group has increasingly deplored what it has described as the “privatization of war” on grounds that are less imbued by an ideological critique of privatization than they express a concern with private violence's potential for humanitarian harm. It has cautioned states, for example, that “outsourcing . . . does not relieve States of their obligations under international law” and, in fact, that “States should not outsource activities that constitute direct participation in hostilities.”Footnote ¹¹⁰ These admonitions have been ambiguous and their foundation not always been clear. As it turns out, however, that more agnostic approach cannot avoid fundamental questioning about the usefulness of ISFs. It is vulnerable to the possibility that mercenaries, although they might no doubt be awful war criminals, might in some circumstances be more adept at respecting the laws of war (for example because they are bound by strong contractual mechanisms that require them to do so). As Dino Kritisotis notes, this opens up the possibility of a “re-consideration of the mercenary enterprise . . . especially if the new breed of mercenary is trained to fight in a professional and disciplined way.”Footnote ¹¹¹ It remains difficult to systematically tie negative humanitarian outcomes to the mere fact of privatization, without a clearer understanding of the grounding of ISFs.

3. Linking Humanitarian Concerns and ISFs

This renewed in bello sensitivity has led to a rekindling, in international law, of arguments taken very explicitly from theories of ISFs. The Preamble to the proposed Draft Convention on Private Military and Security Companies, for example, deplores “[t]he increasing outsourcing of inherently State functions which undermine any State's capacity to retain its monopoly on the legitimate use of force”Footnote ¹¹² and states its very purpose as being “[t]o identify those functions which are inherently State functions and which cannot be outsourced under any circumstances.”Footnote ¹¹³ In particular, it provides a definition of inherently state functions as those:

In parallel and somewhat belatedly, specifically humanitarian efforts have begun discreetly reasserting a certain stake in the monopolization of war waging functions. For example, the Montreux Document, a soft law initiative led by the Swiss government, indicates specifically that “[c]ontracting States have an obligation not to contract PMSCs to carry out activities that international humanitarian law explicitly assigns to a State agent or authority, such as exercising the power of the responsible officer over prisoner of war camps or places of internment of civilians in accordance with the Geneva Conventions.”Footnote ¹¹⁵ More generally, “in determining which services may not be contracted out, contracting states take into account factors such as whether a particular service could cause PMSC personnel to become involved in direct participation in hostilities.”Footnote ¹¹⁶

Neither the Draft Convention on private military and security companies nor the Montreux Document are, of course, part of positive international law as of now. The Draft Convention, notably, has been opposed very consistently by key Western powers intent on not letting the language of ISFs compromise their ability to resort to PMSCs.Footnote ¹¹⁷ Neither, moreover, positively excludes all recourse to private military actors: the former because it is only concerned with mercenaries rather than the whole issue of outsourcing military functions; the latter because it is only concerned with a particular subgenre of military functions that might have significant humanitarian ramifications. They do nonetheless indicate an intellectual trend to try to reestablish, through international legal means, a sense of ISFs that is specifically connected to the humanitarian project, and not just the sovereignty-upholding goal of maintaining the state's monopoly over the use of legitimate force for its own sake. Characteristic of modern international humanitarian law trends, they also do not distinguish between international and non-international armed conflicts.

There is, in fact, a remarkable degree of practice when it comes to considering certain functions as inherently sovereign, at the interface of the domestic and the international. For example, the increasing focus on ISFs in the context of the debate on mercenarism has led to at least one interesting exercise in elucidating state practice. The Working Group asked states to comment on their views on ISFs. A number responded providing some clear evidence, in the context of an inquiry by an international law body, of the range of functions that are ordinarily considered to be inherently governmental by states themselves. Most included the use of force but also went significantly beyond it. For example, Algeria insisted that “all public functions concerning the sovereignty of the State, in particular law enforcement, the armed forces and the justice system were inherently governmental functions that could not be exercised by the private sector.”Footnote ¹¹⁸ Similarly, Bangladesh noted that “functions attributed to the Ministries of Defence, Finance and Budget, Foreign Affairs, Justice and the Interior were inherently governmental.”Footnote ¹¹⁹ Colombia noted that constitutionally “only the Government could manufacture weapons,”Footnote ¹²⁰ whilst Costa Rica listed “national security, politics, jurisdiction and the police as inherently governmental functions.”Footnote ¹²¹ Finally, El Salvador mentioned “the functions of national defence and security; the management of foreign policy; international relations; economic policy; the State tax system; the management of foreign debt; and other functions which the Constitution and international conventions specifically excluded from decentralization.”Footnote ¹²² All of these statements may not directly reflect opinio juris but, made in an international environment and with remarkable constancy, they do suggest a strong expectation that all aspects of the use of coercion will ultimately be tightly traceable to the state.

As such, the debates on mercenaries in international law provides an interesting segue to potentially even more radical efforts to reassert state prerogatives via international law inspired by human rights that more directly target the state's domestic spheres of competency. Indeed, like the Israeli Supreme Court judgment on prison privatization, they begin to portray the necessarily public character of certain “services” (here, the provision of security via the use of armed force) as flowing from a fundamental human exigency rather than merely the international system's need for mimetic reproduction.

1. Early Intimations

The decades that followed the adoption of the Universal Declaration on Human Rights were marked by a kind of Cold War-imposed truce within the human rights movement on the desirability of particular political and economic regimes. The end of the Cold War, by contrast, made it less necessary to insist stridently that human rights were not committed to either of the political models that had dominated until then, when one model seemed to no longer be a contender. The model that “lost,” as it happens, was the one that entertained the fewest doubt about ISFs: it, in fact, believed in that notion so wholeheartedly in its sometimes-totalitarian zeal, that it decided that virtually every function ought to be inherently sovereign; by contrast, the model that can be understood to have “won” is the one that has been most skeptical, in its neoliberal zeal, that anything is inherently sovereign. At the same time, the excesses of globalization and notably the massive waves of privatization it inaugurated as a result of debt-fuelled structural adjustment and deregulatory competition have increasingly problematized the role of outsourcing through the lens of human rights, as one of the more obvious sites of resistance, particularly in the Global South.Footnote ¹²⁵

One detects a constant back and forth between simply demanding more regulation of outsourced services and finding that they should not be outsourced in the first place; in other words, between a weak sense of a priori public functions and a strong sense of inherently public functions. In turn, the debate oscillates between arguments that private actors are merely more likely to violate human rights (as a result of what they may do) and a finding that private actors will inherently violate human rights (as a result of what they are). These oscillations are familiar from domestic constitutional debates, and well within what one would expect of an international human rights movement that engages fundamentally the same themes, albeit from its own more universal standpoint.

A certain pragmatism tended to reign at first, with reformist concerns at the forefront. In relation to policing, for example, one worry was the risk of civil unrest but more generally the inappropriate degree of supervision of privatized policing. A 1991 report of the Inter-American Commission on Human Rights about Panama, for example, expressed concerns about “the current proliferation of private security agencies, which now amount to about 105 enterprises with a total of 12,000 armed members, who number more than the personnel of the three branches of the Public Force (air, sea and police)” and urged the government to do something about that development.Footnote ¹²⁶ This is not a position, however, that was necessarily linked to a strong theory of ISFs.Footnote ¹²⁷ Consider for example the Committee on Economic, Social and Cultural Rights’ quite neutral General Comment on the Right to Adequate Housing:

The risk is nonetheless that rights beneficiaries will find themselves with the worst of both worlds: a state that has relinquished some of its core functions, and private actors that are not bound to guarantee rights.Footnote ¹²⁹ As a result, much of the concern with privatization has led to the broad warning that states, at least, cannot escape their obligations simply be outsourcing services.Footnote ¹³⁰ For example, the CESCR has frequently asked states to specify how privatization of the health system might affect the fulfilment of the right to health, and emphasized the state's continuing responsibilities:

This is surely a central pillar of the international law of state responsibility, evocative of the complementary notion that states cannot elude responsibility by invoking their domestic law. It is not, however, the same thing as an explicitly ISF based theory.

Over time, nonetheless, a more robust approach has gradually begun to develop. This was evident in relation to the use of force in national settings as early as the 1990s. The Concluding Observations of the Human Rights Committee on Algeria, for example, hinted at a strong preference against outsourcing to so-called “defense groups” and noted that:

Another area in which the question of ISFs was tackled early on by international human rights bodies, perhaps unsurprisingly given the centrality it has assumed domestically at around the same time, is that of the privatization of prisons. As early as 1988, the question was raised in the then Sub-Commission on Human Rights’ Working Group on Detention, culminating in a landmark report by Claire Palley that raised a number of arguments characteristic of ISF theory.Footnote ¹³³

2. Privatization and Poverty

In other words, sotto voce, international human rights law can be seen to have long militated for a recentering of the state around sovereign functions in at least certain crucial areas typically associated with traditional Regalian functions. It is only in 2018, however, that a major report directly tackling the issue of privatization from the point of view of human rights was published, authored by UN Special Rapporteur on Extreme Poverty and Human Rights Philip Alston.Footnote ¹³⁴ This was an unusual report in that, instead of focusing on discreet human rights violations or indeed a specific rights-violating subject, it emphasized privatization as a broad, cross-cutting phenomenon that could affect a variety of rights. It was notable, moreover, for its move away from questions concerning the use of force to a broader critique of privatization, specifically as it impacted poverty. The rapporteur's treatment of the question of ISFs was, on one level, still quite ambiguous.

On the one hand, Alston acknowledged defining certain functions as “inherently sovereign” as an existing practice domestically but described this as merely one “mitigation technique” of the effects of privatization, among others. Moreover, he expressed skepticism about the practice:

This wariness with the absence of bright lines, whilst perfectly understandable in view of the already mentioned evolution of what counts as ISFs, is somewhat strange when it comes to human rights. Rights have historically been associated with the attempt to draw such lines, difficult as the exercise may be. The argument offers a rather weak rebuttal to the concept of ISFs based on the difficulty of defining them (as if, for example, defining human rights in general or the human rights responsibilities of corporate actors were easy). It does, of course, resonate well with a familiar principled neutrality when it comes to the very organization of the state: “in theory,” as Alston puts it, “privatization is neither good nor bad.”Footnote ¹³⁶

On the other hand, Alston's wariness with the notion of ISFs seems strangely at odds with his own emphasis on the need to “reassert basic values” and “reclaim the high ground,” as well as to reverse the notion that privatization should be the “default setting.” He emphasizes, in particular, the need, in a context where “[t]he logic of privatization assumes no necessary limits as to what can be privatized,” for the human rights community to:

Although perhaps not the same thing as specifically acknowledging that some functions are inherently sovereign, this does sound strikingly compatible with the goal of delineating an irreducibly public sphere. Others in the international human rights world have adopted a similar if even more explicit tone. For example, Manfred Nowak has challenged “a widely held belief among human rights scholars that human rights are ‘neutral’ toward privatization,” arguing that “while it is true that human rights may be fulfilled in different economic systems, effective implementation of international human rights obligations requires states and the international community to develop, maintain, and progressively improve a certain level of public infrastructure in order to enable all human beings to effectively enjoy and exercise human rights.”Footnote ¹³⁸

3. A Change of Mood?

This change of mood, furthermore, is visible across a range of issue areas where the human rights movement has recently attempted to reinscribe the role of the state. For example, the UN special rapporteur on adequate housing, despite recognizing the role that the private sector serves in realizing that right, has described housing as “not just a commodity,” and denounced the fact that under the “financialized model” housing is not “viewed as a home or a place where families grow . . . . Housing is an asset. It's a place to park capital.”Footnote ¹³⁹ This is part of a broader movement against the financialization of the housing sector on human rights grounds,Footnote ¹⁴⁰ which is also visible in various country reports by the rapporteur.Footnote ¹⁴¹ As a result, it has been argued that the “State must ensure that all aspects of [the private sector's] involvement are consistent with States’ obligations to realize the right to housing for all.”Footnote ¹⁴² Although certainly not going as far as to suggest that states should build housing themselves, “a new relationship between governments and the investors currently dominating the housing landscape must be forged.”Footnote ¹⁴³

This connects to similar complaints that the right to health can be made particularly precarious by privatization. Although the Committee's General Comment on the Right to Health treats public and private healthcare as both conceivable, it also emphasizes the need for states “to ensure that privatization of the health sector does not constitute a threat to the availability, accessibility, acceptability and quality of health facilities, goods and services.”Footnote ¹⁴⁴ Moreover, states have the obligation to grant “equal, affordable, and physical access” to water even when operated or controlled by (presumably private) third parties by ensuring adequate regulation.Footnote ¹⁴⁵

Such concerns find broader resonance within the international human rights movement and have been expressed forcefully in the context of the COVID-19 pandemic. For example, a group of UN special rapporteurs published an op-ed in which they took issue with “the catastrophic fallout of decades of global privatisation and market competition” in a context where “vital public goods and services have been steadily outsourced to private companies . . . further marginalising poorer people.”Footnote ¹⁴⁶ The largely private search for a vaccine, in particular, means that it is unlikely to be delivered to all without charge. In short, the six rapporteurs argued that “States can no longer cede control as they have done” and “are not absolved of their human rights obligations by delegating core goods and services to private companies and the market on terms that they know will effectively undermine the rights and livelihoods of many people.”Footnote ¹⁴⁷

These concerns may not signal the same degree of adherence to a notion of ISFs that uses of force do for example. However, they do indicate a distinctive and expanding human rights wariness with privatization in relation to economic and social rights that comes remarkably close to an indictment of the market as a rights-worthy mechanism in all circumstances. They also potentially significantly extend the scope of ISFs to a range of areas that have less to do with maintaining a certain sovereign primacy for the sake of it, than with the ability to fulfill pre-existing rights mandates. In short, the broad arc of the international human rights movement is one that has slowly moved from a position of claimed neutrality in relation to privatization understood as merely one modality among others of organizing social life, to a reckoning with the actual and near-systematic impact of privatization on a range of rights.

1. Inherently Public Rights?

In order to develop a human rights-based theory of ISFs that is not merely instrumental, it may be useful to first explore what in the promotion of at least certain rights already contains an explicitly or implicitly sovereign dimension. The Israeli Supreme Court's assumption of a particularly deontological standpoint in the form of dignity was an intriguingly appropriate argument in the narrow context of commodification of human lives in prisons. But it is almost too high a ground from which to mount a challenge to privatization broadly understood on the international plane (for the most part, it would be hard to argue that, as a matter of international human rights law and in a range of domains, privatization is an affront to human dignity).

Consider, instead, the protection of the security of persons, including the right to life. That protection is typically understood to require the use of force (or at least the possibility thereof) and the ability to punish those responsible for rights violations, characteristics which are hard to reconcile a priori with privatization. The increasing emphasis on investigating and prosecuting grave violations of human rights, for example, seems to reinscribe the central role of the state, given how implausible normatively it is that core criminal functions would be outsourced to the private sector. By contrast, according to the Interamerican Commission on Human Rights:

Although the Commission found that private forces could “offer security for assets and valuables,” they were “not intended to augment or supplant the member states’ obligations in the area of citizen security, as the State's responsibility for the protection of human rights is a non-delegable duty.”Footnote ¹⁵³

Consider, next, protection from arbitrary detention. Guaranteeing that persons will only be detained if they have received a “fair trial” requires a judicial system, particularly in the criminal justice realm, and it is difficult to imagine how that could be anything else than the byproduct of a state system. In other words, the right to a fair trial is not simply a right to tried fairly by whatever organ one happens to be tried by, but arguably a right to be tried by an independent and impartial tribunal understood as a tribunal that is an emanation of the state. As Claire Palley once put it in one of the earliest international human rights reports on the issue: “Symbolically speaking, only the State should have powers of administration of justice and of executing it by coercion.”Footnote ¹⁵⁴ Indeed, by contrast, some of the more dramatic manifestations of the privatization of justice have manifested a genuine collapse of the sort of public service that the state is mandated to provide under human rights.Footnote ¹⁵⁵Although not as specific as the Israeli Supreme Court, the Human Rights Committee has expressed “concern” as to “whether [privatization of prison management] in an area where the State Party is responsible for the protection of human rights of persons deprived of their liberty effectively meets the obligations of the State Party under the Covenant.”Footnote ¹⁵⁶

Perhaps even more importantly, privatization can be understood to undermine the right to equality, to the extent that it disproportionately affects racialized persons.Footnote ¹⁵⁷ This is a complex area for human rights law given that it might draw it into seemingly political controversies on the nature of market driven inequalities. However, it is also precisely on account of its inability to have such conversations that the discourse of human rights has sometimes been dismissed as potentially irrelevant.Footnote ¹⁵⁸ Of late, UN human rights experts at least seem to have manifested a renewed willingness to tackle the intersection of privatization, poverty, and discrimination. As the special rapporteur on education put it: “Private providers do not respect the prohibited grounds of discrimination and violate fundamental principles of non-discrimination in human rights law: social origin, economic condition, birth or property are the preponderant factors in allowing access to private schools.”Footnote ¹⁵⁹ This led him to insist on the necessity of “preserving and strengthening education as a public good” and “promoting the view that the State is the custodian of quality education.”Footnote ¹⁶⁰ Alston has also mentioned that privatized care is “especially susceptible to racial and other forms of discrimination,” in a context where “profit is the overriding objective, and considerations such as equality and non-discrimination are inevitably sidelined.”Footnote ¹⁶¹

In the case of economic and social rights, a central place for the state is even more explicitly encouraged when it comes to particularly crucial resources such as water. The Committee on Economic Social and Cultural Rights’ report on the right to water, for example, argues that “water should be treated as a social and cultural good, and not primarily as an economic good.”Footnote ¹⁶² Through their distinct paths, therefore, each of these rights can be reconstructed as leading back to at least some necessary component of state implementation.

2. The Obligation to Protect and Fulfill and ISFs

Beyond what can be inferred from discrete rights, it is arguably the whole apparatus of international human rights law which suggests that at least some state responsibilities cannot be privatized or can only be privatized under onerous conditions. The so-called obligation to protect in itself delineates a dimension that is inherently governmental, in that at least that obligation cannot be outsourced and suggests the need for specifically public measures to deal with the consequences of privatization. As per the Ruggie Principles:

Specifically, states should “[e]nforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights, and periodically to assess the adequacy of such laws and address any gaps.”Footnote ¹⁶⁴ This enforcement of laws, then, in and of itself, would seem to presume a natural realm for public intervention, namely that of guaranteeing that ISFs outsourced to private actors are to be monitored closely as part of a theory of ISFs. Failure to rise to their own obligation to protect is by contrast often credited with having allowed encroachments of privatization on the sovereign's regulatory sphere, with potentially devastating consequences for human rights. The state, in particular, should guard against any temptation to outsource that might compromise its ability to ensure the protection of human rights. As made clear by the CESCR, monitoring itself involves the exercise of ISFs:

Similarly, the so-called “obligation to fulfill” (or “ensure”) has long been understood to entail positive measures, across the whole range of human rights, which themselves cannot be outsourced. The obligation to fulfill suggests that states should be fully accountable for their decision to privatize.Footnote ¹⁶⁶ Although this is somewhat different from saying that certain functions cannot be outsourced at all, there is an occasional slippage toward more principled arguments. As Claire Palley put it: “Although . . . arguments of principle may to some extent be met by safeguarding arrangements . . ., they remain relevant as additional reasons why a system of State contracting out of management of prisons might be an unlawful subdelegation of power.”Footnote ¹⁶⁷

Commenting on the UK report in 1995, the Human Rights Committee expressed the concern “that the practice of the State party in contracting out to the private commercial sector core State activities which involve the use of force and the detention of persons weakens the protection of rights under the Covenant.”Footnote ¹⁶⁸ Following New Zealand's periodic report in 2010, the Committee wondered “whether such privatization in an area where the State party is responsible for the protection of human rights of persons deprived of their liberty effectively meets the obligations of the State party under the Covenant and its accountability for any violations, irrespective of the safeguards in place.”Footnote ¹⁶⁹ Positive human rights obligations, in particular in the economic and social fields, have also been noted as requiring something more than a “hands off” approach in a context where “the quest for limited government, which sometimes fuels the privatisation agenda, would appear to run counter to the responsible state that underpins positive obligations.”Footnote ¹⁷⁰

Further arguments for a correlation between ISFs and human rights have emerged at the intersection of discourses of human rights and good governance that emphasize the need for a certain human rights infrastructure. The Committee on Economic, Social and Cultural Rights argued in 1999 that the elimination of poverty on the part of states “requires full compliance with the principles of accountability, transparency, people's participation, decentralization, legislative capacity and the independence of the judiciary.”Footnote ¹⁷¹ This has been prolonged in the Human Rights Council mandated report to the High Commission for Human Rights on “the role of the public service as an essential component of good governance in the promotion and protection of human rights.”Footnote ¹⁷² The report emphasizes the “role of the public sector as service provider or regulator of the private provision of services [that] is crucial for the realization of all human rights, particularly social and economic rights.”Footnote ¹⁷³ The language used suggests, again, a range of legislative, administrative and judicial measures which are solidly understood to lie within the realm of the state.

The obligation to protect and fulfill, moreover, is crucially connected to an obligation to remedy, which it is difficult to imagine could itself be outsourced even if everything else was privatized. To cite the Committee on the Rights of the Child:

Regardless of whether certain functions can legitimately be outsourced, then, the specific supervisory and remedial features of such a regime of delegation must itself be public. This may ultimately be one of the most incontrovertible proofs that certain functions are inherently sovereign under international law. This includes “the passing of law and regulation” for example as well as investigating and adjudicating, and a host of measures associated with remedying rights violations.Footnote ¹⁷⁵ Even if private remedies are available and encouraged by the state, they should ultimately themselves be reviewable. Thus, one sees the state as, in extremis, the ultimate stop gap measure in a chain of human rights protections that can be extended to involve private actors but not to a breaking point.

3. The Authority to Limit Human Rights

A third line of justifying ISFs from the perspective of human rights more broadly reflects on qualitative differences between states and private actors, and how this impacts on their authority to implement human rights. This is relevant, to begin with, specifically in relation to limitations to rights which have become so central to the human rights machinery. International instruments emphasize the need to adopt laws, if at all, to limit rights which suggests that, ultimately, all significant and authorized limitations of rights should be sanctioned by the legislature. The adoption of laws, then, would seem to signal toward something in the very implementation machinery of rights that legitimizes state intervention in ways that may be hard to reconcile with private outsourcing.

Moreover, human rights may be system-neutral, but they do evidence over time a strong connection to at least one particular regime, democracy.Footnote ¹⁷⁶ Leading human rights instruments, for example, protect the exercise of the rights to vote and stand for public office. In fact, democracy is weaved intimately into rights limitation analysis, with the standard referent being, notably in the European Convention on Human Rights, that limitations should be “necessary in a democratic society.” This notion refers back to the state and its “capacity to adopt rules that are rendered fair and equitable through processes of consultation and feedback, its embrace of systems of checks and balances designed to avoid capture by any particular group.”Footnote ¹⁷⁷ By contrast, for example, philanthropic giving has been described as “not a democratic or transparent process, moving efforts to address poverty behind closed doors . . . a form of private political power.”Footnote ¹⁷⁸

The underlying democratic ethos of human rights is also expressed through appeal to notions such as the right to self-determination and the assumption that “the legitimacy of . . . inherently governmental powers entrusted to the State by the people depends upon their exclusive exercise by the State.”Footnote ¹⁷⁹ Although presumably international law is less invested than constitutional law in states exercising functions that have been entrusted to them domestically, cases where privatization runs afoul of self-determination and procedural obligations attached thereto would seem to compromise a key international legal interest in protecting popular will, notably when it comes to indigenous peoples’ land.Footnote ¹⁸⁰ A particular concern when it comes to self-determination is with public ownership of land resources and the risk that privatization will directly infringe collective rights. For example, in 1997, the CESCR complained that it was “unable to assess to what extent the general public is able to participate in the privatization process” in Azerbaijan, and that it was “important that the privatization process should be conducted in an open and transparent manner and that the conditions under which oil concessions are granted should always be made public.”Footnote ¹⁸¹

Many of the criticisms of outsourcing emanating from human rights bodies take issue with the very nature of private actors and their tendency to fundamentally depart from the characteristics of states. Alston has wondered rhetorically whether “private entities dedicated to maximizing their own profits [are] best placed to protect the rights of the community.”Footnote ¹⁸² It has been pointed out that “[f]rom the human rights perspective, the financialization of the water and sanitation sector creates a disconnect between the interests of company owners and the goal of realizing the human rights to water and sanitation.”Footnote ¹⁸³ Although it is not inconceivable to think of corporations as exhibiting pseudo-democratic structures, that is not, for the most part, how corporate governance functions in the absence of a demos that is the hallmark of democratic organization, and the evident drive toward profit.Footnote ¹⁸⁴

Inductively, therefore, one seems to arrive through human rights at the idea of the state (rather than to the idea of rights through the state), a perhaps unsurprising conclusion given the fact that human rights is a discourse that has, at least since the eighteenth century, been obsessed with sovereignty. At the very least, then, international human rights law would seem to require the state to guarantee human rights and to assume that this cannot be done without the state being a state and in a position to itself exercise a range of implementation and supervisory functions that then deeply taint the activities in question. It is certainly conceivable that other actors would be bound to respect rights, but only that specifically public actors would be in a position to implement them broadly. This suggests that the state owes it to human rights, as it were, to conserve a certain governmental and democratic aptitude and not surrender the discharge of functions central to the enjoyment of rights to private actors.