When Private law meets Public law in geopolitics

Mar 1

Author: Chief Legal Analyst, B.A.

I. INTRODUCTION

When we look at the law in general, we can see one significant distinction between public law that governs states, sovereignty and diplomacy and ways of conducting war. Private law on the other hand is the legal sphere that regulates relation between private parties such as cooperations and property relation individuals. Easily we can assume that the geopolitics issues fall under the scope of public law.

However, the contemporary geopolitical challenges showed us that such distinction does not exist anymore. In Today’s modernized world, geopolitical influence is exercised not through coercion or territorial conquest, even though obviously there are existing norms from the international legal sources prohibiting such activities, but through financial systems, supply chains, digital platforms and regulatory networks. And these mechanisms are primarily structured through private law instruments such as contracts, corporate mechanisms, asset freezing and commercial regulation. Consequently, as a result, public objectives are frequently perused through private legal frameworks.

Therefore, there is a fundamental arising question, where the line between public law and private law matters actually stops, does the growing interaction between the two spheres signal in some way the erosion of the sovereignty, or maybe, as I would allow myself to address it, a revolution the international legal order.

II. SOVEREIGNTY AND THE CLASSICAL PUBLIC LAW

To understand how the legal categories interfere we need to take under consideration the role of sovereignty and its concept, enshrined in the international legal order. Let’s look at Article 2(1) of the United Nations Charter, the international systems is based on the sovereign equality of states (referring to the horizontal legal order principle). Furthermore, Article 2(4) prohibits the use of force as a way of conducting international relations. These two provisions perfectly reflect the classical understanding of public law in geopolitics. The idea is simple, states possess authority, they interact within a framework of legal norms and power is transformed into institutional form.

Therefore, from a classical point of view, private actors play no (independent) geopolitical role. Corporations and individuals operate within state jurisdictions and are subjects to domestic legal regulations. Markets are irrelevant in conducting international relations, yet the reality is different

III. ECONOMIC SANCTIONS: PUBLIC DECISIONS, PRIVATE ENFORCEMENT

One of the clearest examples of the interaction between private and public law in geopolitics is economic sanctions. Thy are adopted through public law mechanisms not from private ones. For example, the United Nations Security Council may impose sanctions under Chapter VII of the UN Charter, while the European Union adopts restrictive measures under its Common Foreign and Security Policy (Article 21 of the TEU). These are clearly public law acts, aimed at maintaining international peace and security. However, the problem here is different. The effectiveness of the implementation of these measures almost entirely rely on private actors. For example, measures like freezing assets, suspension of contracts or insurance firms withdraw coverage are all actions carried out within the private legal framework and yet serve a political object. On paper and practice the state does not physically seize funds but the private actor. In simple words , the whole procedure is like a formula – Public law (decision making) + Private law (enable actions) = Implementation of sanctions.

This dynamic only demonstrates that modern geopolitical power is exercised also by the legal instruments from the sphere of private law, in that regard, private markets.

IV. FOREIGN INVESTMENT AND STATE SOVEREIGNTY

Another important meeting point between private and public law in geopolitics is international investment law. Bilateral investment treaties (BITs) (agreements between two parties that protects investors from being treated unfairly by the country they have invested in) allow private investors to bring claims directly against states through arbitration. A fundamental change in the international legal order in my opinion. We used to have only states as parties in international arbitrations, but contemporary obstacles allow private subjects to take part as well. A hypothetical similar scenario will be when a government adopts measures during geopolitical crisis, such as nationalizing strategic industries, restricting foreign ownership or even introducing emergency economic regulations. Potentially, from normative point of view, referring to Bilateral Investment treaties, this action can be challenged before international tribunals, making the states act in pursuit of national security or public interest. I decide to use the concept of BITs as they illustrate, even though arguably, in the best way how private legal mechanisms can be both facilitate international cooperation, from economical aspect, and simultaneously the regulatory limit of states in escalating geopolitical situations

V. ACCOUNTABILITY OF PRVATE ACTORS

Now, after we addressed some essential conflicts between the two legal spheres, we need to also analyze the aspect of accountability. The fusion of private law and public law in geopolitics raises concerns about accountability without a doubt. Private corporations are not democratically elected, yet, as we established, they play decisive role in implementing or shaping geopolitical measures. The international legal order continues to attribute responsibility primarily to states. However, when the power is exercised through the private law instruments, like cooperations, the lines of responsibility are not very clear, because states rely on the private actors’ actions and still bear the legal consequences. And companies on the other hand, can only be held accountable under domestic law, contract law, regulatory compliance rules and sometimes even human rights frameworks. Consequently, this creates a gap between political decision-making and the practical implementation and legal tribunals often find controversial to draw the line between primary and secondary accountability. Therefore, the challenge is to ensure that when a private actors enforce public measures, there are clear legal norms and standards and effective remedies for those effected. In my opinion, without let’s say such safeguards, the exercise of geopolitical power through private markets risks becoming uncontrollable and not so transparent

VI. CONCLUSION

In conclusion, in today’s model of international legal practices and geopolitical crises, we are witnessing a clear transformation of sovereignty in the globalized era, due to the contradiction of public law and private law in certain of aspects of contemporary international relations. While the foundational principle enshrined in the UN Charter, the practical exercise of geopolitical power increasingly depends on private actors, especially economic ones.

Sanctions, investment disputes and financial restrictions shows us how public objectives are pursued through private legal mechanisms. Sovereignty has not disappeared, but rather reshaped. It depends more on economic regulations and finance, but this is a natural process in my opinion, as everything is about money in nowadays.

In this “hybrid order”, as I would call it, the boundary between public and private law becomes invincible. The essential legal question is different here. It is not about whether private actors participate in geopolitics, they obviously do, but rather how involvement can be reconciled with accountability, legitimacy and the rule of law in the contemporary international system.

Author: Boris Atanasov (Law student at Sofia University and Global Law student at the University of Turin)

E-mail: borisatanasov22@gmail.com

LinkedIn: Boris Atanasov

Boris A.