Summary of my presentation to the Third Session Of The Open-Ended Intergovernmental Working Group to Consider the Possibility of Elaborating an International Regulatory Framework on the Regulation, Monitoring and Oversight
of the Activities of Private Military and Security Companies
“Mehari Taddele Maru highlighted the increasing number of PMSCs, the range of their services and the number of countries in which they operated. He noted an overall increase in reports of human rights violations associated with the activities of PMSCs. Those developments raised questions about the legitimacy of the private use of force, the capacity of States to effectively control their territory and the issue of accountability. He highlighted challenges to ensuring accountability, noting that the activities of PMSCs affected individuals in countries which were disadvantaged and least able to ensure access to effective remedies, owing, inter alia, to weak regulatory and enforcement mechanisms. There were shortcomings in the governance of the activities of PMSCs, including a focus of national legislation on domestic providers; weaknesses in national regulatory and enforcement mechanisms; reactive, ad hoc and fragmented industry self-regulation; regulatory approaches that treated PMSCs like any other commercial activity; and voluntary non-binding international initiatives. An international instrument, building on existing international law and reflecting elements that could be identified across existing national legislation, would fill an important legal gap in the governance of PMSCs and provide a normative and institutional framework. Furthermore, model national laws could be developed and consideration be given to the development of regional conventions. Mehari Taddele Maru outlined gaps in the governance of the activities of PMSCs. International humanitarian law would cover only a narrow range of armed conflict-specific activities, while international human rights law did not provide specific provisions to address concerns related to potential capacities and actual activities of PMSCs. He highlighted discrepancies in the interpretation of existing legal provisions and noted that self-regulation through adherence to guiding principles did not provide victims with either claimable rights or legal standing. Jurisdictional and procedural challenges and a lack of capacity on the part of some territorial States presented further impediments to accountability. Those gaps could be filled through model laws for national legislation, regional instruments and a treaty at the international level. An international treaty, which constituted the highest source in international law, would fill a normative, institutional and procedural gap; transform existing soft law principles into treaty provisions; consolidate and reinforce existing inadequate and scattered laws; provide a distinctively tailored instrument for the governance of PMSCs; clarify rights for victims to claim and establish mechanisms for redress; establish clear lines of responsibility and accountability; and ensure a human rights-based approach. In response to concerns that universal ratification might not be reached, Dr. Maru underscored that experience showed that a treaty initially ratified by some states could gradually achieve universal ratification.”
http://psm.du.edu/media/documents/international_regulation/united_nations/human_rights_council_and_ga/open_ended_wg/session_3/un_open_ended_wg_session_3_summary_english.pdf