Government for hire: privatizing foreign affairs and the problem of accountability under international law.

AuthorDickinson, Laura A.

INTRODUCTION I. PRIVATIZATION IN THE INTERNATIONAL SPHERE A. Military Functions B. Foreign Aid II. INTERNATIONAL LAW, ADMINISTRATIVE LAW, AND THE PROBLEM OF PRIVATIZATION A. International Law B. Administrative Law 1. Legal Accountability 2. Alternative Mechanisms of Accountability: Democratic, Contractual, and Institutional III. Two CASE STUDIES OF FOREIGN AFFAIRS PRIVATIZATION A. Military Functions 1. Legal Accountability 2. Democratic Accountability 3. Contractual Accountability 4. Internal Institutional Accountability B. Foreign Aid 1. Legal Accountability 2. Democratic Accountability 3. Contractual Accountability 4. Internal Institutional Accountability a. Nonprofits/Nongovernmental Organizations b. For-Profit Firms CONCLUSION INTRODUCTION

The privatization of governmental functions has long since become a fixture of the American political landscape. From the management of prisons, to the provision of welfare and other services, to the running of schools, federal and state governments have handed over more and more tasks to either for-profit or nonprofit private enterprises. Indeed, a 2003 Harvard Law Review symposium went so far as to declare ours an "Era of Privatization." (1) And while some scholars have extolled the cost savings that privatization may bring,(2) others have expressed deep misgivings, arguing that privatization threatens to erode legal and democratic accountability. (3) Such scholars worry that, because private actors are usually not subject to the constitutional and administrative law norms that apply to governments, any purported efficiency gains from privatization (4) may come at the cost of losing important public values. (5) Finally, an emerging middle ground position embraces privatization while seeking new mechanisms for extending public values through contract, (6) democratic participation, (7) and other modes of accountability.

Despite this rich debate about privatization in the domestic context, 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 now regularly relies on private parties--both for-profit and nonprofit--to provide all forms of foreign aid (including emergency humanitarian relief, development assistance, and post-conflict reconstruction), (8) to perform once sacrosanct diplomatic tasks such as peace negotiations, (9) and even to undertake a wide variety of military endeavors. These military functions include not only support services such as constructing weapons and building barracks, but also core activities such as training the military, gathering intelligence, providing security services, and even conducting combat-related missions. (10) Nor is this development confined to the United States. Other countries, as well as international organizations such as the United Nations, have privatized many aspects of their work. (11) Indeed, some "failed" states have relied almost exclusively on private actors to perform both international and domestic roles of government, using private military companies to fight their wars, foreign nongovernmental organizations (NGOs) to provide their essential social services, and foreign for-profit companies to build their roads, dams, and other infrastructure. (12)

One need only look at recent events to glimpse the significance of this trend. For example, not only are there approximately 20,000 private military contractors in Iraq, (13) but the Abu Ghraib prison scandal revealed that even such sensitive tasks as military interrogations have been privatized. (14) Moreover, according to a military report, over one-third of the private interrogators at Abu Ghraib lacked formal military training as interrogators. (15) As one of these interrogators revealed, "cooks and truck drivers" were hired because the private company in charge of providing interrogation services was "under so much pressure to fill slots quickly." (16) It is not suprising then that many reported incidents of abuse at Abu Ghraib have now been tied to these private contractors. (17) Meanwhile, on the foreign aid front, the FBI is investigating whether the Pentagon improperly awarded Iraq reconstruction contracts on a no-bid basis to Halliburton, a company with close ties to the White House and Defense Department. (18) Indeed, the extent of Halliburton's contracts in Iraq gives a sense of the scope of privatization: these contracts by themselves are estimated at nearly $15 billion, more than twice the cost to the United States of the entire 1991 Gulf War. (19)

Despite the magnitude of these developments and their potentially far-reaching consequences, international law scholars have not yet focused sufficiently on privatization as a comprehensive trend in the international arena, let alone considered its implications. To be sure, many scholars have, over the past two decades, challenged the state-centered focus of traditional international law scholarship and instead emphasized the growing importance of non-state actors. Yet, even these scholars have not homed in on privatization specifically: the growing phenomenon of governments delegating to private actors various foreign affairs functions formerly provided by states. (20) Thus, we have seen work on how international law norms might be extended or reinterpreted to apply to specific non-state actors, such as guerrilla organizations, terrorist groups, and corporations. (21) There has also been much discussion about the more general role of NGOs, international civil society, and networks of state and non-state actors. (22) But none of these inquiries is framed as an examination of the particular practice of government privatization. (23)

As a result, international law scholars have not offered a systematic analysis of how privatization in the international and transnational sphere might affect norms of accountability crucial both to the rule of law and to democratic legitimacy. Yet, at least on its face, privatization seems to be as consequential internationally as it is domestically. Indeed, because most formal international law instruments apply only to governmental actors, (24) 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. (25)

So, is the sky falling on international law? This Article argues that it is not. Rather, privatization in the international sphere need not actually result in less accountability, legal or otherwise. 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. Accordingly, though privatization may take constitutional norms out of the equation domestically (leading to a dramatically reduced scope of accountability), no equivalent to that constitutional baseline exists in the international realm. Such failures of accountability are, of course, a cause for concern, and I would join with most international human rights scholars in regretting the relative weakness of international law. Ironically, however, this very weakness means that, when foreign affairs functions are transferred to private actors, any reduction in accountability likely will not be as great as in the domestic sphere, where the baseline of accountability for government action is far more robust. In addition, the very fact of privatization--with its hybrid public-private character--may actually open up alternative norms and avenues of accountability beyond the formal instruments of international law. Thus, I argue that accountability and public values can not only be maintained but in some cases even increased in an era of privatization.

Such accountability, however, will not come exclusively (or perhaps even primarily) from formal international legal instruments. Certainly these instruments can be amended or reinterpreted to bring non-state actors working in a quasi-governmental capacity within their ambit. This amendment and reinterpretation process has been the principal response of international law to the rise of non-state actors, (26) and it is an important and necessary first step. But it is only a first step, because formal international law instruments are a relatively weak accountability mechanism even with regard to state actors, let alone private entities.

This Article, therefore, takes a different approach. Drawing on the extensive domestic administrative law literature on privatization, I argue that international law scholars must consider three additional modes of accountability that may be important specifically because of the relationships between states and the private actors working for them under contract. Each of these three modes of accountability has been discussed extensively by administrative law scholars, (27) but has remained under-theorized in the international law literature. First, domestic scholars have examined the idea of democratic accountability and have attempted to respond to the concern that privatized government functions might render those functions less accountable to the public at large. Although democratic accountability questions are obviously more complicated in the international sphere--because those affected by a governmental (or quasi-governmental) act are most likely not members of the polity of the government authorizing the act--we shall see that norms of transparency and democracy may still provide an important check. Second, provisions in government contracts might explicitly incorporate a variety of disciplining measures, from international law norms, to rules regarding training, to assurances about transparency and public participation, to specific output requirements. Such provisions...

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