Can Self-Regulation Work? Lessons from the Private Security and Military Industry

Abstract

Various efforts have been undertaken in recent years to clarify the legal framework governing the outsourcing of security and military functions to private actors. While national and international legislation have made little progress, self-regulation has advanced steadily. The article provides the first normative assessment of self-regulation in the private security and military industry – and as such offers insights for other industries that are transnational in reach and under-regulated by domestic, regional, and international law. Though industry critics tend to deplore the normative 'softness' of self-regulation and its voluntary nature, it appears to have shifted behavioral norms and triggered a compliance pull. Its weakness, I argue, lies elsewhere: regrettably, emerging self-regulatory schemes in the industry focus on monitoring (as opposed to sanctioning) and on corporate accountability (as opposed to individual accountability). To overcome these limitations, I suggest the adoption of an OECD-type model of governance for the private security and military industry. The model would combine the use of regional bodies at the monitoring level with an international supervisory body at the sanctioning level. Unlike existing regulatory schemes, the proposed model has the ability to monitor and sanction both corporations and their employees – something none of the proposals currently on the table contemplates. At a time where many industries struggle to find optimal modes of governance, the Article draws attention to an industry where much creativity has been shown. Beyond the lessons learned for the regulation of war and security, the experience of the private security and military industry highlights the potential of a mode of governance that has somewhat fallen out of fashion, the benefits of involving certain non-state actors in law-making, and the need to reflect on the nature of the 'law' thus developed.