Is it legal, or even legitimate, for the WHO's budget to be mostly covered by private donations? Can the International Organization for Migration and the European Union legally and legitimately privatize the control of their member states ' maritime borders in the Mediterranean? Do and should military security companies have the same rights, privileges and immunities under international law, or even the same obligations and responsibilities under international human rights or humanitarian law, as states or international organizations when acting in their stead abroad? What is the difference between a norm or standard derived from an international treaty and an ISO or OECD norm or standard? Are vaccines international public goods, and what does this imply, as opposed to what exactly? Are deep-sea or asteroidal mineral resources legally available to the first state or multinational company able to exploit them? As diverse as they are, these different questions of contemporary international law all rest on a certain distinction and articulation between the private and the public, a distinction and articulation which, however, they also help to reveal, at the same time, the extreme fragility, even confusion, of the respective positions.
This lecture will be the first in a series devoted to the public/private distinction and its role in, but also and above all for and by contemporary international law (including in, for and by European Union law). (Re)questioned at the global level even more than within States, where confusion between the public and the private, and criticism of the distinction, are already well advanced, the distinction between the public and the private must be clarified, and their relations articulated, before we can envisage the legal reorganization of an international institutional order in crisis. In fact, as we shall see, it is in international law (particularly in the International Law of Institutions) that the future of the articulation between the public and the private, and by extension that of States and law as we know it, is now at stake.
Following a review of the long history of a fundamental distinction in, for and by law (particularly international law), and a contemporary philosophical reflection on its justification, nature and role, the lecture will address a number of current issues in international law. It will deal with the practice of States and their now close institutional relationships with private institutions such as multinational corporations and non-governmental organizations, as well as with the practice of international organizations which have become the linchpins of the privatization of the public or, conversely, the publicization of the private at both international and national levels, and henceforth even of the sources of law. The treatment of these different issues will be illustrated by current examples drawn from different regimes of international and European law, and in particular from international and European law on human rights, health, data protection, armed conflict, the environment and space (maritime and outer space).
