In “Are There ‘Inherently Sovereign Functions’ in International Law?”, Frédéric Mégret provides a deeply insightful reflection on “the essence of the state” from the point of view of international law, outlining a theory about the inherently sovereign functions in international law. He carefully identifies existing norms of international law that articulate certain public functions to be performed solely by the state rather than delegating them to private actors. Mégret offers functional and intrinsic rationales, suggesting that individuals have a right to benefit from certain public functions exercised by state authority, such as legislation and adjudication, what perhaps could be termed “the human right to the state.” In this essay, I suggest that it is indeed possible to derive such demands from the requirements of stable and sustainable governance that are embedded in the concept of sovereign responsibility, as well as from the rights associated with democracy and self-determination. I further argue that Mégret's inquiry can and must be extended also to explore the other side of the coin: the role of international law in facilitating (and possibly limiting) the delegation of public authority to unaccountable international organizations and other global governance bodies.

Frédéric Mégret's extremely rich and interesting article implicates a wide range of issues. Luckily, a lot has already been written about some of them elsewhere. In any case, the limited scope of this essay precludes engaging with them all again here. What it will do instead is explore ways of contributing further to the article's important, timely and, I would like to argue, providential project, which is to reflect over and develop the publicness of the international legal order. I will present comments on three dimensions of that project: the language, the scope, and the institution of what one may refer to as “the international public.” My claim is that, to succeed, the article's argument should move away from the functional approach to publicness, embrace public institutions of international law other than states, and focus on the institutional dimension of international public law.

In this essay, I approach the question of privatization from a normative political theory perspective. Following Mégret's lead, I focus on the inter- or transnational domain, with the aim of making explicit the norms that undergird Mégret's analysis despite the functional approach he apparently adopts. I argue that the normative basis of the ideas of sovereignty and publicness he relies on is parasitic on the principles of democratic legitimacy developed on the level of the constitutional democratic state. Put differently, my concern is less with the potential demise of public international law that privatization seems to portend, and more with privatization's threat to democratic self-government under both domestic and international public law.

In “Are There ‘Inherently Sovereign Functions’ in International Law,” Frédéric Mégret suggests that the fact that international legal practice has sought to preserve a state monopoly over the use of force strengthens the argument that international law considers some functions to be inherently sovereign. Mégret's analysis goes much further than this in seeking to develop a thicker and broader understanding of inherently sovereign functions (ISFs) by reasoning inductively from international human rights law. This essay largely supports this approach through a case study of the approach taken by the United Kingdom to outsourcing military and security functions. It explores an understanding of inherently sovereign functions based on the state's monopoly on the legitimate use of force and claims that outsourcing military and security functions undermines state sovereignty.

In the recent theoretical scholarship on sovereignty, it has become commonplace to encounter the numerous ways in which state sovereignty has been quietly “outsourced” and “pooled” with other agents and institutions, especially international institutions aimed at promoting global governance and commerce. Frédéric Mégret's fascinating article, which contributes to this growing body of scholarship, adds an important twist to this literature, by focusing specifically on the privatization of state sovereignty—that is, how various sovereign functions, once thought to be essential or “inherent” to statehood, have now been outsourced and handed over to private actors. While Mégret's analysis concerns the consequences of privatized sovereignty on modern public international law, there is a rich pre-modern legal history anticipating the conceptual and normative problems explored in this piece. This essay focuses on some of those early modern sources, especially the theory of Jean Bodin (c.1530–1596), which bear a striking resemblance to Mégret's analysis. Like Mégret, Bodin, the preeminent theorist of state sovereignty, approached the concept of sovereignty by focusing on those qualities that were regarded to be exclusive.