The contractualisation of public international law

Abstract

This short paper intends to set out a general theory underpinning the process of contractualisation of public international law. In doing so, it explains that this has chiefly been engineered through the establishment of a third sphere of regulation – in addition to the spheres of domestic law(s) and international law – namely transnational law. Both private actors and states operate through this sphere, chiefly because of its flexibility, decreased transaction costs and access to capital (which is scarce in the other two spheres). These benefits of transacting in the transnational-law sphere and the contractualisation of pertinent relationships come at a cost. Such a cost, from the perspective of human rights and parliamentary sovereignty, is explored by reference to two case-studies. The second of these, on the outsourcing of indigenous land rights, is predicated on the research and observations offered by Bhatt (2020).