The private security and military industry has undergone a dramatic shift over the past decade – from an under-regulated sphere of activity to one where a plethora of self-regulatory schemes have emerged. Working jointly with public actors, the private security and military industry has developed a sophisticated self-regulatory framework applicable to its activities.
This framework has been shaped by multi-stakeholder initiatives, industry associations, and corporate codes of conduct. In part because of the rapid pace at which these mechanisms developed, no serious attempt has been undertaken at assessing the normative outcome produced by emerging self-regulatory frameworks in the realm of war and security. And yet, the stakes are high. The private security and military industry plays a growing role in modern warfare, with private security and military contractors at times outnumbering soldiers on the battlefield. The range and sensitivity of functions entrusted to these non-governmental actors heightens the need to reflect upon the regulatory changes that have impacted the industry.
Reflecting upon the achievements of the emerging regulatory framework governing war and security also has important ramifications for other industries. The financial sector, in particular, has been engaged in a vibrant debate over whether top-down or bottom-up approaches to regulation produce better results, over whether regional regulation by the European Central Bank is preferable to national regulation, and over whether self-regulation should be ruled out altogether given its failure to prevent the global financial crisis. The innovative approach taken by the private security and military industry provides valuable insight on the future of self-regulation and global governance.
Surprisingly, analysis of the innovative and fast-paced regulatory developments in the private security and military industry has remained limited. Whenever conducted, it has focused on the nature of self-regulation as such, with a focus on its 'soft' normative character and on the absence of appropriate oversight. This paper advocates a repositioning of the critique. From a regulatory perspective, the private security and military industry has succeeded in enhancing transparency and participation – two important characteristics of successful global governance schemes. This progress must be acknowledged for any critique to be credible. That said, skeptics are correct to say that more needs to be done. This paper seeks to identify what "more" means in the context of the regulation of private war and security. First, it means more sanctioning – beyond the mere expulsion or suspension of non-compliant actors from self-governance schemes. Second, it means broadening the reach of the regulation to individual contractors, alongside state and corporate accountability.
I propose a regulatory model that would achieve these two goals. The proposed model builds on the industry’s most recent attempt at improving governance (the Charter of the Oversight Mechanism for the International Code of Conduct for Private Security Providers, herein after "the Charter") as well as on the experience of other globally-regulated sectors. It consists of a multi-level regulatory regime – combining the use of national bodies at the monitoring level with the use of an international body at the sanctioning level. Importantly, it enables monitoring and sanctioning of companies and contractors alike – something none of the proposals currently on the table contemplates.
Because the emergence of non-traditional regulation in the realm of war and security has remained largely unnoticed among regulation experts – and its normative impact largely under-explored by legal experts – this article provides the first in-depth attempt at tackling important questions arising out of this noteworthy regulatory development. Have recent and ground-breaking steps undertaken in the realm of self-regulation succeeded in enhancing compliance with the law? How is such regulation perceived by major industry players? Has the private security and military industry found the right equilibrium?
The contributions of the paper are thus far-reaching – not only in identifying mechanisms best suited to monitor compliance in the private security and military industry but also in designing optimal methods of regulation in global governance more generally. In the midst of a debate over the creation of "hybrid sources of law" by non-state actors, this study also offers timely reflections on the feasibility and the benefits of involving certain non-state actors in law-making.