International and Transnational Regulation of Private Security Services: Effective Complementarity?

Abstract

Regulation is progressively subject to a process of privatization and globalization, so much so that the expressions "global law" and "transnational regulation" are often opposed to the classical distinction between "domestic law" and "international law". The area of security services is also undergoing this evolution and is increasingly governed by private regulatory initiatives, complementing public norms transnationally. Since security entails the use of force, such a process raises particular issues with respect to fundamental rights, which are crucial to the establishment of a transparent level playing field. A systemic analysis based on contracts, services, compliance, and enforcement mechanisms demonstrates that transnational private regulation theoretically harmonizes with fundamental public norms, but practical implementation is complex, specifically in conflict situations. This is essentially due to the narrow inclusion of fundamental substantive rules in contractual clauses, as well as flaws in the effectiveness and interaction of private and public implementation mechanisms. It is argued that such problems are basically grounded in the fact that private security contractors mostly do not legally qualify as "combatants" in conflict situations: this question should be addressed separately, particularly within the framework of the existing conventions on the laws of war. The issue is critical and affects not only the responsibility of Private Security Companies (PSCs) and their personnel, but also their protection and fundamental rights, as well as the liability of third persons.