Outsourcing and Sovereignty

Sovereignty has both an internal aspect, namely the “supreme authority” of the state over everything in its territory,Footnote ² and an external aspect, namely the “capacity to act on the international plane.”Footnote ³ Outsourcing the state's military and security functions undermines both of these aspects, as it signifies a process whereby the government voluntarily transfers some of its monopoly on the use of force to the private sector. In the United Kingdom, this stage in the dissolution of the modern state has not been reached, although the continued shrinking of the military will lead to the private sector filling the inevitable void.Footnote ⁴ The private provision of security at the 2012 Olympics in London was a setback for private security, when the contractors were unable to deliver the services promised and the extra security urgently needed was supplied by the British armed forces. But this event did show the government's intention to transfer military and security functions to the private sector even for such events of national and international importance.

Outsourcing reduces the state's competence on the international plane including its ability to project its sovereign power abroad within the framework of international laws agreed by states on the basis of sovereign equality. By transferring some of its military and security functions to the private sector in its external uses of force, the state erodes the power of direct command and control it has over armed force essential for the state's monopoly. For example, in deciding that some of the protections provided by the European Convention of Human Rights applied to British soldiers in Iraq as well as to civilians under their control, Lord Hope in Smith v. Ministry of Defence stated that,

Thus, the state's command, control, and regulation of military force remains complete even when troops are deployed to combat missions overseas.

A significant shift away from public to private force, even when the latter is used for public purposes, would constitute the erosion of a command-based model whereby the state is able to order its troops and other state agents to fulfil military and security functions, towards a contract-based model under which the state relies on enforceable promises of military and security services. The command-based model is accompanied by a military justice system based on ensuring the obedience and discipline of soldiers, while providing procedural safeguards to soldiers accused of violations of military or criminal law.Footnote ⁶ In contrast, a contract-based model largely depends on a combination of liability in private law and self-regulatory forms of corporate social responsibility that purport to ensure that contractors comply with basic rules on the use of force. Outsourcing means that a strong vertical system of control over the use of force is replaced by a weaker horizontal one. There may be criminal prosecutions of the most egregious violations committed by individual contractors, but these are exceptional.Footnote ⁷ Furthermore, the privatization of force shifts the applicable national legal framework away from public law towards private law. While public law is the natural conduit for norms of international law to enter into a domestic legal system, private law is not. In this way, the privatization of force is shielded from both national and international constitutional laws that have been developed to empower, but also to restrict, the state in exercising its monopoly over the use of force.

PMSCs Unconstrained by Public Law in the United Kingdom

It is clear that in the United Kingdom the risks arising from the potential for private force that grew out of the “Peace Dividend” and the dwindling of the regular armed forces at the end of the Cold War were well known. In a prescient Green Paper of 2002, the U.K. Foreign and Commonwealth Office reviewed the options for regulation of what was at that time a fledgling PMSC industry:

Various options for regulation of the growth of UK-based PMSCs were explored in the Green Paper, ranging from outright prohibition, through licensing, to self-regulation. Only prohibition would fully protect the state's command and control over armed force used for external purposes, although a system of licensing would at least have the potential to reduce the chances of PMSCs acting against U.K. interests. However, licensing without vigorous oversight and enforcement by public authorities would not entail sufficient control and regulation of PMSCs to protect and constrain the state's monopoly over the use of force.

A system of licensing for the United Kingdom's largely unarmed domestic security industry was put in place in 2001 with the passing of the Private Security Industry Act, after an unsuccessful period of self-regulation, and the same was anticipated for PMSCs based in the United Kingdom but operating abroad.Footnote ⁹ However, by the time the government came to decide on the issue of regulation in 2009, the PMSC industry had become much more powerful and influential as a result of its involvement in the wars in Afghanistan and Iraq. This influence, combined with the ideology of privatization and the climate of austerity caused by the global financial crisis, “led the government to adopt the least burdensome, least interventionist and, moreover, least expensive option of self-regulation.”Footnote ¹⁰

Self-regulation at the national level has been combined with soft laws and self-regulation at the international level.Footnote ¹¹ The United Kingdom established a system that gave the maximum freedom of action to U.K.-based PMSCs operating abroad, while at the same time undermining its ability to command and control the external use of force. It effectively freed PMSCs from the constraints of public law and public international law. A system of self-regulation for PMSCs is inherently flawed in that it is self-judging, voluntary, has limited sanctions, and the standards agreed upon by and for the PMSC industry contain self-interested understandings of domestic and international laws.Footnote ¹² Such standards are neither national laws promulgated by a domestic legislature, nor international laws agreed in inter-governmental fora; rather, they are described by the International Organization for Standards (ISO) as the “distilled wisdom of people with expertise in their subject matter and who know the needs of the organizations they represent.”Footnote ¹³ Essentially, the privatization of force is matched by the privatization of standards applicable to such force.

By way of justification for private actors to carry weapons and use force, the “Guidance” attached to the ISO standard declares that PMSCs help protect the “human right of people to be secure,” and that in the absence of an effective government, recourse may be had to “commercial providers of security services.”Footnote ¹⁴ This statement raises the specter of the private forces that roamed the world in the eighteenth and nineteenth centuries. The assumption that PMSC are entitled to carry and use lethal weapons while operating overseas represents a real risk to the sovereignty of the host state and has the potential to undermine the national interests of the home state and its capacity to act on the international plane.

Outsourcing and Responsibility in Public International Law

The secondary rules of international law purport to show that conduct constitutes an act of state if one of three tests is satisfied: (1) that it is performed by organs or agents of the state; (2) that the conduct itself is inherently governmental; or (3) if the state is in effective control of such conduct.Footnote ¹⁵ The latter two tests have limited traction over the conduct of PMSCs, even those contracted by the government, given high level of control required for the effective control test to be passed and the disputed nature of ISFs. It has been suggested that “combat” is a governmental function, one that should not be performed by PMSCs,Footnote ¹⁶ but even if there is such a proscription it does not stop the use of government contracted PMSCs operating at the peripheries of combat, for example, in guarding individuals, equipment, property, and convoys, or in operating weapons systems, meaning that they can easily be drawn into combat. Contractors might be viewed under the law of armed conflict as civilians who, if directly participating in hostilities, will lose their protected status as civilians and have no privileges as combatants.Footnote ¹⁷ However, this does not inhibit their use as the loss of protected status is a risk taken by PMSCs and their employees, not governments.

The actions of PMSCs are not per se acts of a state under international law, unlike the actions of a state's military and security forces. The U.K. government, along with other like-minded governments, has not accepted that PMSC misconduct can be attributed to a contracting state simply by the fact that a PMSC is operating under a government contract.Footnote ¹⁸ The unwillingness of governments to accept responsibility for the conduct of private armed actors even when operating under a government contract is not only an exercise in outsourcing liability; it is a recognition that the state's legal authority and control over force is receding.

Despite the absence of state responsibility for the conduct of PMSCs, it remains possible to argue that states have positive obligations under international law to prevent violence by private actors including PMSCs. Elsewhere, I have argued that the U.K. government-sponsored system of self-regulation is an abdication of the United Kingdom's duties of due diligence under both general international law and human rights law to take measures to prevent companies operating from within its territory from causing harm and abuse in host countries.Footnote ¹⁹ But even if such measures were to be put in place, they would have to be part of a system of robust regulation of PMSCs, which would have to include vigorous oversight and enforcement by public authorities to ensure that the state's monopoly over the use of force is maintained. In building his account of inherently sovereign functions evident from the body of international human rights law, Mégret states that regardless of whether certain functions can legitimately be outsourced, “the specific supervisory and remedial features of such a regime of delegation must itself be public,” and concludes that international human rights law requires the state to be in a position to “exercise a range of implementation and supervisory functions” related to human rights. As it is, the U.K. government has simply batted away human rights criticisms of its system of self-regulation by referring to non-binding international soft laws,Footnote ²⁰ but these do not meet the human rights standards identified by Mégret, as they do not require a system of supervision and implementation by public authorities.