Privatized Sovereign Performance: Regulating in the ‘Gap’ between Security and Rights?

Abstract

This article explores what I term ‘privatized sovereign performance’: the ‘private’ operationalization of functions that are intimately connected with the sovereign identity of the state. It is considered in the context of corporate involvement in extraordinary rendition in order to outline the rights‐related difficulties it creates or exacerbates, and explore the ways in which transnational private regulatory mechanisms have a role to play in crafting a rights‐based response. It argues that the ‘public’ is saturated in rights‐based regulation which pushes a state that wants to conceal its torturous activity into the ‘private’; that the conventional private regulatory mechanism of litigation faces significant obstacles and is ineffective in this circumstance; and that transnational private regulation holds potential to align the structural and legal obstructions to torture between the public and private sphere, thus making the ‘escape hatch’ from rights seemingly presented by the privatization of sovereign performance more difficult to access.