November 2011, Volume 97, Issue 7
Privatizing International Law
by Paul B. Stephan
97 Va. L. Rev. 1573 (2011)
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The old understanding of international law as something created solely by and for sovereigns is defunct. Today the production and enforcement of international law increasingly depends on private actors, not traditional political authorities. As with other public services that we used to take for granted – schools, prisons, energy utilities and transportation networks – privatization has come to international law.
The tasks of this paper are both positive and normative. It both locates the privatization process within a broader model of law production and uses criteria supplied by that theory to assess its value. It argues that innovation in the production of international law may achieve considerable benefits. Changes in international economics and politics make experimentation imperative. At the same time, some forms of privatization pose considerable risks without corresponding benefits. The question whether international law applies at all to particular conduct is fundamental and has profound consequences. It involves a choice between legal systems, not simply a choice among applicable rules. Privatization that destabilizes the domain of international law, i.e., that makes it less clear where international rules apply, produces high costs that require exceptional justification.
In particular, the last portion of the paper traces through a range of areas where the political branches, through statutes, have given different directions as to the application of international law in lawsuits. I argue that courts should follow these directions, not only because of a general obligation to fulfill statutory intent, but because disregard of them will confuse the general issue of when international law applies. Thus the courts should not expand the domain of international law when statutory law indicates otherwise, and should not demur from applying international law where legislation invokes it, no matter what private litigants seek and whether or not courts generally wish to contribute to the development of international law. As simple and straightforward as these propositions may seem, they resolve many pressing current disputes.
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