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An introduction to the debate on the possible forms of international regulation of the phenomenon of PMSCs

Helena Torroja Mateu
Associate Professor of Public International Law, UB-Director of Studies at the CEI
Helena Torroja Mateu

Helena Torroja Mateu

There is currently a debate within the United Nations concerning the most appropriate legal method to regulate the phenomenon of private military and security companies. One method is based on the 'Draft of a Possible Convention on Private Military and Security Companies (PMSCs)' developed by the Working Group on the use of mercenaries of the Human Rights Council, which was submitted for consideration before the Human Rights Council in September 2010. The other method relies on the existing International Code of Conduct for Private Security Service Providers (ICoC) adopted in 2010 under the initiative of Switzerland and of the IRCC at the urging of major companies in the sector. Both forms come up against two groups of States with opposing characteristics and affinities. The Western Group, in general, opposes the Draft of a Possible Convention, primarily basing its arguments on the adequacy and effectiveness of the International Code of Conduct, among others1; however, behind this group are the interests of the States which most often resort to this industry, particularly in their military operations abroad. Up against this are several Asian countries, led by China, alongside the Russian Federation, Cuba and others like Nigeria… who are tireless advocates of the draft treaty2.

What we have are two methods with a legal structure, targets, aim and purpose that are more different than similar.

The Draft Convention, as its name indicates, is a mere draft of a 'possible' convention drawn up by five independent experts, who are members the Working Group on mercenaries, at the request of the Human Rights Council in its resolution 10/11, of 26 March 2009. The Council itself welcomed the text and, in order to give impetus to the draft, decided to create an open intergovernmental group with the mandate of examining whether or not the text was feasible3. The States themselves, on the basis of their sovereignty, will decide whether or not to adopt this draft or another that may be drawn up in the future. It is therefore too soon to speak of a draft of an international convention, strictly speaking, since not all States have negotiated and drafted the text, but rather a Group of Experts of the Council that very prudently included in the title draft of a 'possible' convention4.

The text submitted by the Group of Experts draws upon a rather distrusting conception of the phenomenon of PMSCs, aware of the human rights violations and breaches of international humanitarian law that PMSCs have committed in some cases. The draft has two specific purposes: first, to oblige States to agree not to delegate or outsource 'inherently State functions'; second, to set limits for States in the cases in which they decide to outsource or delegate functions that are not included in the previous category, limits such as establishing a centralised system of authorisations and recording, a system to control the human rights and international humanitarian law training of the staff of these companies, the classification and repression of offences and crimes committed under the Convention and other international rules, and submission to international control of fulfilment of their obligations under the Convention.

Meanwhile, the International Code of Conduct is written based on business logic, with a very positive conception of these companies. In fact, it is the result of the impetus of a powerful lobby comprised of major British and US companies in the sector. It is a text especially directed at companies, and as of today, 357 companies have signed it5. The text is not legally binding; it merely has recommendations that are not enforceable before any legal body, but rather before its own bodies (there is currently an open discussion on adopting a Charter of the ICoC which would aim to regulate the mechanism to oversee application of the Code). The aim and purpose of the Code, inter alia, is to meticulously establish the human rights and international humanitarian law obligations that must be adhered to by the companies. There is no room here to elaborate on the content, but reading it clearly shows the business logic on which it is based.

In view of the above, any discussion on which of the two forms is the best must stem from the following presuppositions:

First: the debate should not be viewed as the radical opposition between both forms –or future Convention or Code of Conduct–. This is not correct, because they are not comparable documents, as we've seen, nor are they mutually exclusive, because they can coexist perfectly, and this is how the Working Group on mercenaries should look at it.

Two: the debate should focus on why it is necessary to have an international convention, which could include both codification and gradual development in the area. The answer to this question is based on a fundamental issue: what conception is defended on the rule of law and, specifically, on the sovereign competency of coercive power. While it is true that concerning the liberalisation of certain public services of the State, one can have a more or less liberal conception, a more or less social democratic conception. However, here we are not talking about a public service like healthcare, education, transport… We are talking about an essential part of the critical core of sovereignty upon which the Modern State was built in Westphalia: the monopoly of the legitimate use of force which is now a cornerstone of the rule of law. One cannot deny that the limits of coercive power of the legislature (its submission to legislative and judicial powers) are a guarantee for the effective enjoyment of human rights and fundamental freedoms. Not even an exceedingly liberal conception would ever agree to the privatisation/outsourcing of the legitimate use of force6. Arming companies is overstepping the notion itself of rule of law with its defining elements (democracy, human rights, principle of legality, separation of powers).

1. These are Belgium, Slovakia, Spain, United States, France, Hungary, Japan, Poland, United Kingdom of Great Britain and Northern Ireland, among others (see Human Rights Council, Resolution 15/26, 1 October 2010).  (Back)
2. These are Brazil, Burkina Faso, Cameroon, Chile, China, Cuba, Djibouti, Ecuador, Russian Federation, Gabon, Ghana, Guatemala, Libyan Arab Jamahiriya, Jordan, Kyrgyzstan, among others (ibid). (Back)
3. Human Rights Council, Resolution 15/26 of 1 October 2010, 32 votes in favour, 12 against and 3 abstentions (point 4 of the operative part). (Back)
4. On the background of the development of the Draft and its content see Gómez del Prado, JL and Torroja Mateu, H., Hacia la regulación internacional de las EMSP, Marcial Pons, 2011. (Back)
5. All details at (Back)
6. Hayeck, F.A., The Constitution of Liberty, The University of Chicago Press, Chicago, 1960 (first edition 1934), p.133 and ss. (Back)