Are There "Inherently Sovereign Functions" in International Law?

Abstract

Privatization of functions that were traditionally considered sovereign has reached new heights. International lawyers have responded mostly by seeking to limit some of the consequences of that phenomenon, by, for example, ensuring accountability of states for outsourcing. International law has sometimes appeared agnostic, however, about the very legality of privatization. This Article explores a more radical take, namely the possibility that certain state functions could be seen as "inherently sovereign"under international law. International law can be understood this way, the Article argues, despite its general deferral to sovereignty (including the sovereignty to outsource), the fact that historically all kinds of functions that we have come to associate with the state have been exercised privately, and international law's own role in legitimizing privatization in our era.