Privatisierung im Völkerrecht

The privatisation of essential sovereign functions has become a reality in international relations. The provisional culmination of this development is the extensive deployment of private security and military contractors in the conflicts in Afghanistan and Iraq as part of the »war on terror«, in which thousands of service providers carry out logistic, support and combat operations on behalf of the armed forces. Against this background, the treatise at hand evaluates the effects and limits of the privatisation of state functions in public international law. It evinces the current extent of the practice of privatisation relevant to public international law not only in respect of the particularly sensitive privatisation of military functions in the context of armed conflicts, but also in respect of outsourcing in the areas of administration of justice and internal security. The international consequence of this development is manifest in the violations, by way of torture and abuses, of norms protecting human rights, which are evident in the course of the realisation of state functions by non-state entities as required by privatisation. This development has a normative effect particularly in the protection of human rights in public international law, as well as in humanitarian international law. It begs the question as to the extent of the responsibilities for which States, by privatising their functions, are liable. The analysis describes, on the one hand, the accountability for violations of public international law in the exercise of functions by non-state entities, whereby the requirements for, and the scope of, attribution of privatised state functions are evaluated in detail. On the other hand, the treatise ascertains what restrictions are placed on privatisation by the provisions of public international law. Not only general prohibitions on privatisation of specific sovereign areas of competence are included in the potential international legal constraints. Aside from that, considerable importance attaches to supervisory and control duties and the duty of due diligence, which can also act as constraints in individual cases to the devolution of essential state functions to non-state entities.