Abstract
Acknowledging the utility of PMCs to states in this age of privatization, the increasing reliance placed on PMCs by states as they strive to maintain an adequate defense capacity and the simple fact of their existence, states stand in a difficult and conflicted situation vis-à-vis the PMC industry. While it is often expedient for a state to condemn the actions of a given PMC in a foreign state, the same state will undoubtedly be reliant on a raft of other PMCs (or perhaps the same PMCs) for the successful implementation of its defense policy. Accordingly, the fundamental question to be addressed in this chapter, expressed pragmatically is, how can states impose consistent controls on PMCs that will simultaneously stymie the actions of rogue PMCs and allow the state to further its policy objectives via PMCs and not jeopardize the utility of PMCs to that state’s defense agenda?
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsPreview
Unable to display preview. Download preview PDF.
Notes
T. Daintith, “The Executive Power Today: Bargaining and Economic Control,” in Jowell and Oliver (eds.), The Changing Constitution (1985)
cited in C. Graham, “Self-Regulation,” in Richardson and Genn (eds.), Administrative Law and Government Action (Oxford: Oxford University Press, 1995).
P. P. Craig, Administrative Law, 4th edn (Sydney: Thomson Sweet & Maxwell, 2003), 29–38.
This move away from direct legislative control has prompted comment. See, for example, S. Bottomley, “Where did the law go? The delegation of Australian corporate regulation,” Australian Journal of Corporate Law, 15 (2003), 11.
See the sophisticated analysis of regulation particularly as it applies to environmental matters in N. Gunningham, P. W. Grabosky and D. Sinclair, Smart Regulation: Designing Environmental Policy (Oxford: Oxford University Press, 1998).
Discussed in T. Wilkins and T. E. Hunt, “Agency Discretion and Advances in Regulatory Theory: Flexible Agency Approaches Toward the Regulated Community as a Model for the Congress-Agency Relationship,” George Washington Law Review, 63 (1995), 479, especially 492–8 et passim. These authors note a newer trend in which a voluntary preventative approach is taken as opposed to correcting current known problems or retribution type action.
The “Better Regulation Guide” (1998) of Cabinet Office of the UK identifies eleven alternatives in regulation: (1) do nothing: not every problem can be solved by government regulation, (2) review current regulation to determine whether regulation can improve or is the cause of the problem, (3) improve information to address information asymmetry problems, (4) introduce voluntary scheme, (5) consider code of practice with legal effect, (6) request industry to self-regulate, (7) use economic incentives, (8) consider risk-based insurance, (9) classic command and control regulation, (10) license the problematic activity, and (11) use international regulation. Quoted in Ibid., 31–2. A broader discussion on the limits of regulation can be found in I. Maitland, “The Limits of Business Self-Regulation,” California Management Review, 27 (1985) 132.
See, V. Haufler, A Public Role for the Private Sector: Industry Self-Regulation in a Global Economy (Washington, DC: Carnegie Endowment for International Peace, 2001).
B. Purchase, “The Political Economy of Voluntary Codes,” in Webb (ed.), Voluntary Codes: Private Governance, the Public Interest and Innovation (Ottawa: Carelton Research Unit for Innovation, Science and Environment, 2004), p. 81.
We are taken aback by the audacity of the PMC/PSC industry in naming their industry association the International Peace Operations Associations and their reference to the “peace and stability industry”. We appreciate that certain cornpanies within the PMC/PSC industry are trying to put their best foot forward and emphasize their ability to be a force for good in a conflict ridden world, but to suggest that IPOA members are peace operatives (or the implicit suggestion that PMCs are motivated by a desire to secure peace rather than profit) is insincere. We were reminded of George Orwell’s 1946 essay, “Politics and the English Language,” where he warns that, “Political language … is designed to make lies sound truthful and murder respectable and to give an appearance of solidity to pure wind”: G. Orwell, The Collected Essays:Journalism and Letters of George Orwell (New York: Harcourt Brace Jovanovich, 1968).
A more contemporary attack on such cynical misappropriation and devaluing of words for the purpose of obfuscation can be found in D. Watson, Watson’s Dictionary of Weasel Words, Contemporary Clichés, Cant & Management Jargon (Australia: Knopf, 2004).
I P O A (IPOA), International Peace Organisation Association Code of Conduct, 2001, from http://ipoaonline.org/php/index.php?option=com_content&task=view&id=100&Itemid=108[4.1] .
G. Ebbeck, “Mercenaries and the ‘Sandline Affair’” Australian Defence Force Journal, 113 (1998), p. 5–23.
A. Regan and S. Dinnen, “The Sandline Affair: a Chronology of Significant Events,” in Dinnen, May and Regan (eds.), Challenging the State: The Sandline Affair in Papua New Guinea (Canberra: Research School of Pacific and Asian Studies, Australian National University (ANU), 1998), 16–17.
S. Dinnen, R. May and A. Regan (eds.), Agreement for the Provision of Military Assistance between the Independent State of Papua New Guinea and Sandline International (Canberra: Research School of Pacific and Asian Studies, Australian National University (ANU), 1997)
in A. Regan and S. Dinnen, “The Sandline Affair: a Chronology of Significant Events,” in Dinnen, May and Regan (eds.), Challenging the State, pp. 178–88 (Appendix). The agreement delegated farreaching military command authority to Sandline’s personnel: Immediately on signing this agreement the State automatically grants to Sandline and its personnel all approvals, permissions, authorizations, licenses and permits to carry arms, conduct its operations and meet its contractual obligations without hindrance, including issuing instructions to PNG defence forces personnel to co-operate fully with Sandline commanders and their nominated representatives. All officers and personnel of Sandline assigned to this contract shall be enrolled as Special Constables, but hold military ranks commensurate with those they hold within the Sandline command structure and shall be entitled to give orders to junior ranks as may be necessary for the execution of their duties and responsibilities.
See S. Dinnen, “Militaristic Solutions in a Weak State: Internal Security, Private Contractors, and Political Leadership in Papua New Guinea,” Contemporary Pacific, 11 (1999) 279, pp. 294–5.
P. Khareen, “Executive Outcomes—A corporate Conquest’Reference,” in Cilliers and Mason (eds.), Peace, Profit or Plunder: The Privatization of Security in War-Torn African Societies (Capetown: Institute for Security Studies, 1999), pp. 84 and 93.
J. K. Elsea, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues (Washington: Congressional Research Service, 2007), p. 19.
Zagorin, “The Abu Ghraib Cases: Not Yet Over,” Time (August 29, 2007). For an article that surveys the possible options for prosecution of private contactors involved with abuses at Abu Ghraib, see A. H. de Wolf, “Modern Condottieri in Iraq: Privatizing War from the Perspective of International and Human Rights Law,” Indiana Journal of Global Studies, 13 (2006), 315. See also, “Private Military Contractors.” Retrieved February 13, 2007, from http://www.amnestyusa.org/business/pmc/HousePartyToolKit.pdf. P. Singer, “The Law Catches up to Private Militaries, Embeds” (January 3, 2007). Retrieved August 30, 2007, from http://www.defensetech.org/archives/003123.html.
C. Lehnardt, Private Military Companies and State Responsibility (No. 2007/2) (New York: Institute for International Law and Justice, 2007), pp. 6 ff.
C. Holmqvist, “Private Security Companies: The Case for Regulation,” Stockholm International Peace Research Institute, 9 (2005), 51.
See discussion in S A P Parliamentary Monitoring Group, Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill: Finalisation, Protected Disclosures Act: Practical Guidelines for Employees (unpublished manuscript, 2006); R. Taljaard, “Implementing South Africa’s Regulation of Foreign Assistance Act,” in Bryden and Caparini (eds.), Private Actors & Security Governance Geneva: Democratic Control of Armed Forces, 2006, p. 172.
See, for example, D. D. Avant, The Market for Force (Cambridge, New York: Cambridge University Press, 2005), p. 162; P. W. Singer, “War, Profits, and the Vacuum of Law,” 521, 521ff.
K. Olaniyan, Submission to the Portfolio Committee on Defence, South African Parliament: Amnesty International, 2005.
Author information
Authors and Affiliations
Copyright information
© 2009 Benedict Sheehy, Jackson Maogoto, and Virginia Newell
About this chapter
Cite this chapter
Sheehy, B., Maogoto, J., Newell, V. (2009). National Regulation of Private Military Companies. In: Legal Control of the Private Military Corporation. Palgrave Macmillan, London. https://doi.org/10.1057/9780230583016_5
Download citation
DOI: https://doi.org/10.1057/9780230583016_5
Publisher Name: Palgrave Macmillan, London
Print ISBN: 978-1-349-35706-2
Online ISBN: 978-0-230-58301-6
eBook Packages: Palgrave Political & Intern. Studies CollectionPolitical Science and International Studies (R0)