Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability under International Law

Abstract:     
Although the privatization of governmental functions has long since become a fixture of the American political landscape and has engendered a rich scholarly debate among domestic administrative law scholars, far less attention has been paid to the simultaneous privatization of what might be called the foreign affairs functions of government. Yet privatization is as significant in the international realm as it is domestically. The United States and other countries now regularly rely on private parties to provide all forms of foreign aid, to perform once sacrosanct diplomatic tasks such as peace negotiations, and even to undertake a wide variety of military endeavors. Moreover, because most formal international law instruments apply only to governmental actors, we face the specter (as with domestic U.S. constitutional law) of private contractors falling through the cracks of the international legal regime and evading accountability altogether. Despite the magnitude of these developments, however, international law scholars have not yet focused sufficiently on privatization as a comprehensive trend in the international arena, let alone considered its implications.

This Article seeks to fill that gap in the literature while arguing, perhaps counter-intuitively, that privatization in the international sphere need not actually result in reduced accountability. Indeed, the opposite may sometimes be the case because, unlike in the domestic context, legal accountability is actually very difficult to achieve under international law with respect to either state or private actors. Such a failure of accountability under international law is, of course, a cause for concern. Yet it means that there may actually be more avenues of accountability over private contractors than are available with regard to state actors. This is because the very fact of privatization - with its hybrid public-private character - may open up alternative avenues of accountability beyond the formal instruments of international law. Drawing on the extensive domestic administrative law literature on privatization, I argue that international law scholars must consider these alternative avenues of accountability: democratic accountability, contractual accountability, and internal institutional accountability. Applying this expanded framework to both the privatization of military activities and foreign aid, I seek to open a dialogue between international law scholars and domestic administrative law scholars concerning the implications of privatization. In addition, the framework I articulate may allow us to more easily distinguish those circumstances in which privatization may be benign from those in which the risk of impunity is too high.

Keywords: Privatization, Government Contracts, International Law

Accepted Paper Series