Abstract
Private security companies (PSCs), governments, civil society organizations, and other stakeholders of the private security industry have contributed to the development of an interlocking web of soft law initiatives—international declarations, codes of conduct, and security operations management system standards—to improve global governance of the private security industry. This chapter provides background on each initiative and examines their opportunities and limitations, to include their ability to ensure that PSCs respect applicable provisions of international human rights and humanitarian law in their operations and are held to account should they violate these laws. It concludes that rather than a forfeiture of the state’s obligation to regulate the private security industry, over time we are seeing a hardening of soft law initiatives as they make their way into procurement regulations and national laws. Nevertheless, remaining gaps in the soft law initiatives warrant greater efforts to develop binding laws and regulations and to provide greater support for successful implementation of these initiatives. PSCs and their stakeholders have a significant role to play in strengthening and ensuring the continued interoperability of these initiatives.
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Notes
- 1.
Peters et al. (2016), p. 1.
- 2.
Peters et al. (2016), pp. 4, 7.
- 3.
UN Guiding Principles on Business and Human Rights (2011).
- 4.
ISO 18788 is an International Organization for Standardization (ISO) management system standard. ISO standards are voluntary, consensus-based, international business standards drafted with the input of various stakeholders who utilize standards for their products and services, provide services related to standards implementation and auditing, or who have expertise or interest in a standard’s subject matter. As discussed below, companies voluntarily commit to complying with management standards, although some standards can find their way into government regulations, as is the case with ISO 18788, which is incorporated into US DoD procurement requirements.
- 5.
ISO standards are not publicly available and must be purchased for a fee, see http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=63380. Accessed 30 Oct 2016.
- 6.
International Code of Conduct for Private Security Service Providers (2010). As discussed below, the ICoC is a voluntary code of conduct to which private security companies commit. It was drafted through an open consultative process with input from various public and private sector stakeholders. It too is finding its way into government regulations. For example, private security companies providing their services to the Swiss government and the US Department of State must adhere to the ICoC.
- 7.
Ruggie (2009).
- 8.
UN Guiding Principles on Business and Human Rights (2011).
- 9.
Office of the High Commissioner for Human Rights (2017).
- 10.
Unlike ISO 18788, ISO 26000 is a nonauditable guidance for companies seeking to operate in a socially responsible fashion.
- 11.
Draft report on the second session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, October 2016, on file with the author.
- 12.
Rosemann (2008), p. 38.
- 13.
Cockayne (2009), p. 402.
- 14.
Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict (2008).
- 15.
Buzatu (2015), p. 27.
- 16.
See Rosemann (2008) which contains draft elements of a code. In addition, the US trade association, International Peace Operations Association (later renamed the International Stability Operations Association), had already promulgated a code of conduct for its members. That code is still in place, although no longer is being updated on a regular basis as it had been in the past, in recognition of the fact that it has largely been superseded by the ICoC and security operations management system standards.
- 17.
Cockayne (2009), p. 418.
- 18.
Cockayne (2009), p. 403.
- 19.
Buzatu (2015), p. 7.
- 20.
Rosemann (2008), pp. 24–25.
- 21.
Cockayne (2009), pp. 404–405.
- 22.
Rosemann (2008), p. 39.
- 23.
Buzatu (2015), p. 34.
- 24.
DeWinter-Schmitt (2013).
- 25.
Buckland B and Burdzy A (2015).
- 26.
Buckland B and Burdzy A (2015).
- 27.
Information about the Montreux Document Forum and supporting documentation can be found at http://www.mdforum.ch/en. Accessed 1 Nov 2016.
- 28.
A third annual plenary meeting was held in April 2017, but the report of that meeting was not available at the time of publication.
- 29.
Buzatu A (2015), p. 30.
- 30.
Buzatu A (2015), p. 35.
- 31.
Buzatu A (2015), p. 38.
- 32.
This information stems from off-the-record interviews with an industry and civil society representative.
- 33.
ANSI/ASIS PSC.1 (2012).
- 34.
Buzatu A (2015), p. 47.
- 35.
ICoCA Articles of Association (2013).
- 36.
Most likely the number of participating companies dropped for a number of reasons. First, there was a significant consolidation in the industry as revenue streams from government contracting for the Iraq and Afghanistan wars shrunk. Second, a number of the initial signatories were maritime security companies. Many of those went out of business after the decline in piracy off the coast of Somalia. Furthermore, the ICoCA was more focused on land-based security services and never further developed the ICoC to cover the specificities of maritime security, as was initially foreseen in the ICoC. Finally, in order to become full members, companies had to provide information evidencing their commitment to and implementation of the ICoC’s requirements, to include agreeing to submit themselves to certification, monitoring, and grievance procedures.
- 37.
Currently the ICoCA has seven participating governments (US, UK, Australia, Canada, Switzerland, Norway, and Sweden), 100 corporate members, and 18 civil society organizations.
- 38.
Human Analytics (2015a).
- 39.
DeWinter-Schmitt (2016), p. 264.
- 40.
For recent information on ICoCA developments, see the materials from the September 2016 Annual General Assembly meeting, available at http://icoca.ch/en/news/2016-AGA. Accessed 2 Nov 2016.
- 41.
Human Analytics (2016).
- 42.
Buzatu A (2015), p. 62.
- 43.
Human Analytics (2015b).
- 44.
Percy S (2012).
- 45.
Ralby (2015).
- 46.
See footnote 40.
- 47.
A diagram of the management framework is available in ANSI/ASIS PSC.1 (2012), p. xviii.
- 48.
All these standards can be found on the DoD site dedicated to Private Security Companies, see http://www.acq.osd.mil/log/ps/psc.html. Accessed 3 Nov 2016.
- 49.
USDoD (2010).
- 50.
DeWinter-Schmitt R (2016), pp. 262–265.
- 51.
DeWinter-Schmitt (2016), p. 264.
- 52.
Sebstead D (2016).
- 53.
Ralby I (2015).
- 54.
Avant D (2016).
- 55.
MacLeod S (2015).
- 56.
Fransen L (2011).
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DeWinter-Schmitt, R. (2017). International Soft Law Initiatives: The Opportunities and Limitations of the Montreux Document, ICoC, and Security Operations Management System Standards. In: Torroja, H. (eds) Public International Law and Human Rights Violations by Private Military and Security Companies. Springer, Cham. https://doi.org/10.1007/978-3-319-66098-1_6
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