The Creeping Privatization of International Law.

The Article contends that discreet parts of otherwise public regulation are increasingly swept by a transnational regulatory space that is largely contractual in character. This is evident not only in obvious fields such as state financing, but also in the human rights realm. Creeping privatization is also increasingly evident in the realm of treaty interpretation. The erstwhile gatekeepers, states and international adjudicatory bodies, are no longer the sole arbiters of treaty meanings or the ultimate authorities on their enforcement. Instead, private or commercial actors, who have skin in the game, have begun to substantively contribute to, and indeed shape, the normativity of treaties. Commercial entities frequently assume roles as de facto regulators, with entities such as business associations interpreting treaties within their distinct regulatory contexts. Further, commercial actors, including industry associations and investors in investment arbitration, interpret treaties in contrast to national regulatory frameworks, challenging traditional regulatory interpretations. Moreover, corporate giants in sectors like oil and gas engage in selective interpretation of treaty provisions, a strategy often referred to as cherry-picking, aimed at reconciling international legal norms with their operational strategies and commercial objectives. Each of the scenarios represents a profound redistribution of authority within international law that is gradually moving towards the creeping privatization of state authority.