Abstract
Political and economic contexts characterized by armed conflicts are not conducive to economic growth and do not attract foreign investments. This reality is ultimately being detrimental to host States and investors alike. Accordingly, to answer risks associated with armed conflicts, private investors increasingly have recourse to Private Military and Security Companies (PMSCs) in order to undertake economic operations in contexts characterized by a weak rule of law. From an economic standpoint, the rise of PMSCs seems to be beneficial for host States seeking inward flows of Foreign Direct Investment (FDI) and for foreign investors willing to invest in countries affected by armed conflicts that are rich in natural resources, for example. However, the use of PMSCs leads to other issues pertaining, for example, to human rights law, and the laconic regulatory framework for PMSCs and their activities leads to a global state of uncertainty. Therefore, while allowing PMSCs to blossom in conflict-affected countries could benefit the interests of foreign investors and the economic interests of the host State, it could also severely impede with the latter’s other international obligations if PMSCs commit abuses. Although efforts should focus on crafting and enforcing a specific regulatory framework for the activities of PMSCs, international investment law constitutes a promising avenue to contribute to the regulation of the use of PMSCs by foreign investors and complement other international instruments.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
As a consequence, PMSCs themselves also increasingly become the object of FDI.
- 2.
Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict, 17 September 2008, http://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf).
- 3.
International Code of Conduct for Private Security Service Providers (ICoC), November 2010, https://www.icoca.ch/en/the_icoc.
- 4.
Draft International Convention on the Regulation, Oversight and Monitoring of PMSCs (Drafted 13 July 2009). See http://www.ohchr.org/EN/HRBodies/HRC/WGMilitary/Pages/OEIWGMilitaryIndex.aspx.
- 5.
See National Legislation Studies conducted by the UN Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, http://www.ohchr.org/EN/Issues/Mercenaries/WGMercenaries/Pages/WGMercenariesIndex.aspx.
- 6.
See e.g. DeWinter-Schmitt (2013).
- 7.
Del Prado (2012), p. 263.
- 8.
See e.g. Zarate (1998).
- 9.
- 10.
The Latin root of the term “soldier”, solidarius, refers to one who serves a prince or State in exchange for a daily pay. Traces of this original meaning of soldier can still be witnessed in modern languages that are derived from Latin such as the German term “sold” or the French term “solde” that signify “pay”.
- 11.
Notable examples of companies that used private armed forces to protect their interests include the Dutch East India Company and the British East India Company (Godfrey et al. 2014, p. 108).
- 12.
Godfrey et al. (2014), p. 109.
- 13.
See Weber (1994), p. 310:
In the last analysis the modern State can only be defined sociologically in terms of a specific means (Mittel) which is peculiar to the State, as it is to all other political associations, namely physical violence (Gewaltsamkeit).
- 14.
Godfrey et al. (2014), p. 109.
- 15.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), concluded 8 June 1977, entered into force 7 December 1978, 1125 UNTS 3.
- 16.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), signed 12 August 1949, entered into force 21 October 1950, 75 UNTS 287.
- 17.
Article 47(1) of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), signed 12 August 1949, entered into force 21 October 1950, 75 UNTS 287.
- 18.
International Convention against the Recruitment, Use, Financing and Training of Mercenaries, concluded 4 December 1989, entered into force 21 October 2001, A/RES/44/34. See Singer (2004), pp. 525–534.
- 19.
Mercenaries remain, however, a reality in some parts of the world. There have indeed been reports that mercenaries have been contracted and active in conflicts affecting Equatorial Guinea, Côte d’Ivoire and Somalia. See del Prado (2012), p. 263.
- 20.
Article 47(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), concluded 8 June 1977, entered into force 7 December 1978, 1125 UNTS 3.
A mercenary is any person who:
-
(a)
Is specially recruited locally or abroad in order to fight in an armed conflict;
-
(b)
Does, in fact, take a direct part in the hostilities;
-
(c)
Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
-
(d)
Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
-
(e)
Is not a member of the armed forces of a Party to the conflict; and
-
(f)
Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.
-
(a)
- 21.
Del Prado (2012), p. 264.
- 22.
See Singer (2004), pp. 532–533:
[definitions of “mercenary” often focus] on the hiring of the private agent, with the assumption that the agent will be linked to a specific conflict. However, many military firms recruit employees for lengthy periods or work on contracts not tied to any one conflict […]. Moreover, the majority of firms in the industry [i.e. the PSI] offer services that are inherently military in nature, but do not participate directly in hostilities. For example, military consultant firms offer military training and advisory services, and military support firms provide logistics and technical support. These firms and their employees arguably would not fall under the authority of the regimes, as the exact legal threshold of what constitutes participation in the conflict is certainly open to question. Another aspect of the legal definition open to debate is the exact nature of membership in armed forces. Employees of the firms are not acting as individuals, but are part of entities that organize their activities. Moreover, they are liable to their superiors, who are bound to their clients by formal contracts. [footnotes omitted].
- 23.
Singer (2003), p. 75.
- 24.
See Paul Harris, How private firms have cashed in on the climate of fear since 9/11, The Guardian, 5 September 2011. The author observes post-9/11 developments involving:
the growth of a national security industrial complex that melds together government and big business and is fuelled by an unstoppable flow of money. It takes many forms. In the military, it has seen the explosive growth of the contracting industry with firms such as Xe, formerly known as Blackwater, or DynCorp increasingly doing the jobs of professional soldiers. In the world of intelligence, private contractors are hired to do the jobs of America’s spies […]. [G]enerals, government officials and intelligence chiefs flock to private industry and embark on new careers selling services back to government.
- 25.
See generally Moshe Schwartz and Joyprada Swain, Department of Defense Contractors in Afghanistan and Iraq: Background Analysis, Congressional Research Service, 13 May 2011, https://fas.org/sgp/crs/natsec/R40764.pdf.
- 26.
See David Francis, U.S. Troops Replaced by an Outsourced Army in Afghanistan, The Fiscal Times, 10 May 2013.
- 27.
- 28.
- 29.
- 30.
- 31.
See http://www.g4s.com.
- 32.
- 33.
See Phillips et al. (2015), pp. 258 et seq.
- 34.
Both States and private actors such as foreign investors can have recourse to the services of PMSCs in the event of an armed conflict but only States, by virtue of their sovereign prerogative to use force, can hire PMSCs to engage proactively in a given armed conflict.
- 35.
Del Prado (2012), pp. 264–265. See also Confédération Suisse, Département fédéral de justice et police, Rapport de l’Office fédéral de la justice concernant une éventuelle réglementation sur les entreprises de sécurité privées opérant depuis la Suisse dans des zones de crise ou de conflit, 30 December 2010, https://www.bj.admin.ch/dam/data/bj/sicherheit/gesetzgebung/archiv/sicherheitsfirmen/ber-bj-f.pdf.
- 36.
Loi fédérale sur les prestations de sécurité privées fournies à l’étranger (LPSP), entered into force 1 September 2015, http://www.ohchr.org/Documents/Issues/Mercenaries/WG/Law/Switzerland/LPSP.pdf. For an analysis of the Act, see Confédération Suisse, Federal Department of Foreign Affair, Federal Act on Private Security Services Provided Abroad, https://www.eda.admin.ch/eda/en/home/foreign-policy/security-policy/bundesgesetz-ueber-die-im-ausland-erbrachten-privaten-sicherheit.html; Confédération Suisse, Federal Department of Foreign Affair, Activity report 2015–2016 on the implementation of the Federal Act on Private Security Services Provided Abroad, https://www.eda.admin.ch/eda/en/home/news/news-fdfa.html/eda/en/meta/news/2017/4/26/66485.html; and del Prado (2012), p. 265.
- 37.
Confédération Suisse, Federal Department of Foreign Affair, Federal Act on Private Security Services Provided Abroad, https://www.eda.admin.ch/eda/en/home/foreign-policy/security-policy/bundesgesetz-ueber-die-im-ausland-erbrachten-privaten-sicherheit.html. The Act:
regulates the provision of private security services, such as the protection of persons and the guarding or surveillance of goods and properties in complex environments and security services at events. Under the [Act], “private security services” also covers services for foreign armed and security forces, intelligence activities and services in connection with detained or interned persons. Also covered under the [Act] are services in connection with a private security service, i.e. recruiting or training personnel for private security services abroad and providing personnel, directly or as an intermediary, for a company that offers private security services abroad.
- 38.
Del Prado (2012), p. 263.
- 39.
Private Security Industry Act 2001, 11 May 2001, c.12.
- 40.
Maritime and Coastguard Agency, Measures to Counter Piracy, Armed Robbery and other Acts of Violence against Merchant Shipping, November 2010, MGN 440 (M); Foreign Enlistment Act 1870, 9 August 1870, 33 & 34 Vict. c.90; International Criminal Court Act 2001, 11 May 2001, c.17; Northern Ireland (Emergency Provisions) Act 1996, 17 June 1996, c.22.
- 41.
Foreign and Commonwealth Office, Promoting High Standards of Conduct by Private Military and Security Companies internationally, Written Ministerial Statement, 16 September 2010; Foreign and Commonwealth Office, Private Security Companies, Written Ministerial Statement, 17 December 2012; Foreign and Commonwealth Office, International Code of Conduct for Private Security Providers Association Launch, Written Ministerial Statement, 15 October 2013.
- 42.
Foreign and Commonwealth Office, Conflict Issues Group, Guidance on Contacts with Private Military and Security Companies, February 2007; Department for Transport, Guidance to UK Flagged Shipping on Measures to Counter Piracy, Armed Robbery and Other Acts of Violence Against Merchant Shipping, November 2011; Department for Transport, Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances, June 2012.
- 43.
Foreign and Commonwealth Office, Public Consultation on Promoting High Standards of Conduct by Private Military and Security Companies (PMSCs) Internationally: Summary of Responses, 16 December 2009; Foreign and Commonwealth Office, Private Military and Security Companies (PMSCs): Summary of Public Consultation Working Group, April 2010.
- 44.
British Security Industry Association (BSIA), Code of Ethics For Recruitment Organisations Supplying Security Personnel, Issue 1, April 2005, BSIA No 183.
- 45.
Foreign and Commonwealth Office, Private Military Companies: Options for Regulation 2001-02, 12 February 2002. On a commentary of the Green Paper, see Kerry Alexander and Nigel White, The Regulatory Context of Private Military and Security Services in the UK, PRIV-WAR Report—The United Kingdom, National report Series 01/09, 30 June 2009.
- 46.
Foreign and Commonwealth Office, Private Military Companies: Options for Regulation 2001-02, 12 February 2002, p. 6, §1.
- 47.
Early day motion 785, Private Military and Security Companies, Sess. 2007-08, 24 January 2008 (Prim. Sponsor David Anderson), http://www.parliament.uk/edm/2007-08/785.
- 48.
See supra notes 39 to 45.
- 49.
See e.g. War on Want, http://www.waronwant.org/resources/front-private-armies and War on Want, Up Front—Private Armies, http://media.waronwant.org/sites/default/files/UpFront%20-%20Private%20Armies.pdf?_ga=2.101816066.2051761252.1495989973-1593043421.1495989901.
- 50.
For an overview of the regulatory framework for PMSCs in South Africa, see Brief Legal Commentary on PMSCs in South Africa, http://psm.du.edu/media/documents/national_regulations/countries/africa/south_africa/south_africa_legal_commentary_by_david_abrhams_2008-english.pdf.
- 51.
See Del Prado (2012), p. 266.
- 52.
Regulation of Foreign Military Assistance Act 1998, Act No. 729, 1998, Government Gazette, No. 18912, Vol. 395, 20 May 1998.
- 53.
Regulation of Foreign Military Assistance Act 1998, Act No. 729, 1998, Government Gazette, No. 18912, Vol. 395, 20 May 1998.
- 54.
Del Prado (2012), p. 264. See also United Nations General Assembly, Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, Human Rights Council, Eighteenth session, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, A/HRC/18/32/Add.2, 4 July 2011.
- 55.
Private Security Industry Regulation Act 2001, Act No. 56, 2001, Government Gazette, No. 23051, Vol. 439, 25 January 2002.
- 56.
Private Security Industry Levies Act 2002, Act No. 23, 2002, Government Gazette, No. 23677, Vol. 445, 30 July 2002.
- 57.
Intelligence Services Act 2002, Act No. 65, 2002, Government Gazette, No. 24390, Vol. 452, 13 February 2003.
- 58.
Intelligence Services Regulations 2003, No. R. 1505, 2003, Government Gazette, No. 25592, Vol. 73, 16 October 2003.
- 59.
Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act 2006, Act No. 27, 2006, Government Gazette, No. 30477, Vol. 509, 16 November 2007.
- 60.
Private Security Industry Regulation Bill, No. R. 790, 2016, Government Gazette, No. 40116, 1 July 2016.
- 61.
See Private Security Monitor, National Regulations—United States, http://psm.du.edu/national_regulation/united_states/index.html.
- 62.
See Private Security Monitor, National Regulations—Iraq, http://psm.du.edu/national_regulation/iraq.html.
- 63.
See Private Security Monitor, National Regulations—Afghanistan, http://psm.du.edu/national_regulation/afghanistan.html.
- 64.
For the state of regulation on this matter in other countries, see Private Security Monitor, National Regulations, http://psm.du.edu/national_regulation/index.html.
- 65.
For a list of generally applicable international law, see http://psm.du.edu/international_regulation/generally_applicable_international_law.html.
- 66.
For a list of such initiatives, see http://psm.du.edu/international_regulation/regional_initiatives.html.
- 67.
Others such initiatives include the Voluntary Principles on Security and Human Rights (http://psm.du.edu/media/documents/regulations/global_instruments/multi_stakeholder/voluntary_principles/voluntary_principles_eng.pdf), the ISO 18788:2015—Management system for private security operations—Requirements with guidance for use (https://www.iso.org/standard/63380.html), the Management System for Quality of Private Security Company Operations—Requirements with Guidance (https://www.asisonline.org/Standards-Guidelines/Standards/published/Pages/Management-System-for-Quality-of-Private-Security-Company-Operations%2D%2D-Requirements-with-Guidance.aspx).
- 68.
Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict, 17 September 2008, http://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf.
- 69.
See Participating States of the Montreux Document, https://www.eda.admin.ch/eda/en/home/foreign-policy/international-law/international-humanitarian-law/private-military-security-companies/participating-states.html.
- 70.
Participating States of the Montreux Document, https://www.eda.admin.ch/eda/en/home/foreign-policy/international-law/international-humanitarian-law/private-military-security-companies/participating-states.html.
- 71.
DeWinter-Schmitt (2013), p. 158.
- 72.
DeWinter-Schmitt (2013), p. 158.
- 73.
See also the Sarajevo Code of Conduct for Private Security Companies, http://psm.du.edu/media/documents/regulations/global_instruments/multi_stakeholder/sarajevo_code_of_conduct_eng.pdf.
- 74.
International Code of Conduct for Private Security Service Providers (ICoC), November 2010, https://www.icoca.ch/en/the_icoc.
- 75.
The ICoC was signed in November 2010 by 58 PMSCs and, as of September 2013, 708 companies had committed to operate in accordance with the Code (see https://www.icoca.ch/en/history).
- 76.
As of 22 May 2017, seven States—Australia, Canada, Norway, Sweden, Switzerland, the United Kingdom and the United States—18 civil society organizations, and 99 private security companies have joined the Association (see http://www.icoca.ch).
- 77.
- 78.
Draft International Convention on the Regulation, Oversight and Monitoring of PMSCs (Drafted 13 July 2009).
- 79.
Article 1(1) of the Draft International Convention on the Regulation, Oversight and Monitoring of PMSCs (Drafted 13 July 2009).
- 80.
Hail (2009), p. 2.
- 81.
Del Prado (2012), p. 271.
- 82.
This argument is indeed surprising as most countries already provide for such a licensing regime. See Hoppe and Quirico (2011), pp. 365–367.
- 83.
The absence of a regulatory framework for the PSI prompted other propositions based on what exists in the domain of the law of the sea and the aviation regulatory framework. See Charamba (2017).
- 84.
See Williams (1993), p. 62:
While every investment, domestic or foreign, entails […] political risks, the risks of international investment, particularly in developing countries, are generally greater and more complex than those for domestic investments. […] The political risks of international investment […] particularly in developing countries, are generally without parallel in a domestic environment. For domestic investments, there is often a so-called “regulatory risk” that the government will change the rules of the game in a way that will adversely affect the economics of the investment. [footnote omitted].
- 85.
Moran (1999) [citing Harvard Professor Louis Wells, Jr.] as cited in Rubins and Kinsella (2005), p. 3. Williams distinguishes three categories of political risks: risks that the host State undertakes deliberate acts; risks of political violence; and, risks that the conversion of local currency into foreign exchange is restricted (Williams 1993, pp. 64–65).
- 86.
- 87.
Rubins and Kinsella (2005), p. 3. See also Hoppe (1997), pp. 49–50:
Obviously, we do not inhabit a world of complete certainty. We cannot predict all of our future actions and their outcome. There are in our world surprises. Our knowledge of future events and outcomes is less than perfect. We make errors, can distinguish between failure and success, and are capable of learning. Unlike for an automaton, for us knowledge is valuable. To know something or not makes a difference. […] Knowledge does not help us predict an unalterable course of events but is a tool of purposefully changing and hopefully bettering future outcomes and events.
- 88.
One option that is available to foreign investors in this regard is to have recourse to the World Bank’s Multilateral Investment Guarantee Agency (MIGA) that provides political risk insurance guarantees to private sector investors and lenders (see https://www.miga.org/who-we-are/overview/).
- 89.
Political risk minimization strategies can include adopting an appropriate corporate structure or entering into Memoranda of Understanding with local NGOs or other entities.
- 90.
It is interesting to observe that the recourse to PMSCs to protect foreign investors and their investments share some similarities with the old practice of “gunboat diplomacy” whereas the home State of the investor would protect the investment through military presence and pressure on the host State.
- 91.
The timeline of events is important, however, when assessing the extent of the foreign investors’ legitimate expectations. In the event of a conflict, a finding as to what should have been the foreign investor’s legitimate expectations will be different depending on whether the investor had prior knowledge of an armed conflict in the host State or if the conflict broke loose unexpectedly after the investment was materialized in the host.
- 92.
See Phillips et al. (2015).
- 93.
Cf. David Shearer, Outsourcing War—Why Mercenaries are a Fact of Warfare, Foreign Policy, 15 September 1998 (“‘Dismissing private’ sector military personnel as little more than modern-day soldiers of fortune would not only be simplistic but would obscure the broader issues that these military companies raise”).
- 94.
Quoted in Smith and Stohl (2000).
- 95.
Avant (2004), p. 154.
- 96.
See http://www.care.org.
- 97.
- 98.
- 99.
- 100.
See http://www.wvi.org.
- 101.
See http://www.unhcr.org.
- 102.
- 103.
- 104.
- 105.
See http://www1.wfp.org.
- 106.
- 107.
Spearin (2001), p. 28.
- 108.
- 109.
- 110.
Avant (2004), p. 153.
- 111.
- 112.
- 113.
Phillips et al. (2015), p. 257.
- 114.
Phillips et al. (2015), p. 257.
- 115.
Phillips et al. (2015), p. 270.
- 116.
Regarding the purpose of the recourse to the services of PMSCs, it is important to recall that neither TNCs nor humanitarian NGOs can hire PMSC personnel to operate alongside State military forces. Even if not hired directly by the State to reinforce its military, PMSCs can nevertheless exercise a beneficial impact in conflict-affected areas by having, even if only as a spill-over effect of the completion of the task(s) they are assigned under contract, a positive effect on civilians, for example by enhancing the level of security. This was the case of EO in Angola and Sierra Leone, as observed by O’Brien (1998), p. 89.
- 117.
Schill (2017), p. 17.
- 118.
See European Parliament resolution of 6 April 2011 on the future European international investment policy 2010/2203(INI) and European Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions—Towards a comprehensive European international investment policy, 7 July 2010, COM(2010)343 final.
- 119.
Schill (2017), p. 17.
- 120.
See Subedi (2016), pp. 22 ff.
- 121.
See Resolution of the OECD Council, 12 October 1967, 7 ILM 117. The Draft Convention on the Protection of Foreign Property was never formally adopted. On the failed attempt to conclude the MAI, see Parra (2012), pp. 201 et seq. Recently, the EU has expressed its intention to create a Multilateral Investment Court. See http://trade.ec.europa.eu/doclib/press/index.cfm?id=1608.
- 122.
Reinisch and Bjorklund (2012), p. 310.
- 123.
The difficulty of modernizing international investment law through binding instruments is further illustrated by the frequent use of the phrase “for greater certainty” or variations thereof. See e.g. US 2012 Model BIT, fns 2, 4, 6–8, 11, 19, Arts. 2(3), 5(2), 8(4), 20(8) and Canadian 2004 Model FIPA, fns. 1, 6, Arts. 7(2), 9(6), 16(1)), of Annexes (See e.g. US 2012 Model BIT, Annexes A and B and Canadian 2004 Model BIT, Annexes III and IV) or Notes of Interpretation (see e.g. NAFTA Free Trade Commission, North American Free Trade Agreement Notes of Interpretation of Certain Chapter 11 Provisions, 31 July 2001).
- 124.
See Luke Eric Peterson, Norway proposes significant reforms to its investment treaty practices, Investment Treaty News, 27 March 2008 and Damon Vis-Dunbar, Norway shelves its draft model bilateral investment treaty, Investment Treaty News, 8 June 2009. See Agreement between the Kingdom of Norway and --------- for the Promotion and Protection of Investments (2015), https://www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draft-model-agreement-english.pdf.
- 125.
See Schill (2017), pp. 17–18.
- 126.
Such CSR instruments include the UN Global Compact Principles (See United Nations Global Compact, The Ten Principles of the UN Global Compact, https://www.unglobalcompact.org/what-is-gc/mission/principles, the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003), http://hrlibrary.umn.edu/business/norms-Aug2003.html, the UN Guiding Principles on Business and Human Rights (United Nations, Guiding Principles on Business and Human Rights, Implementing the United Nations “Protect, Respect and Remedy” Framework, 2011, http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf and the OECD Guidelines for Multinational Enterprises (OECD, OECD Guidelines for Multinational Enterprises (2011), http://www.oecd.org/daf/inv/mne/48004323.pdf.
- 127.
See e.g. Article 31 of the Agreement between the Kingdom of Norway and --------- for the Promotion and Protection of Investments (2015), https://www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draft-model-agreement-english.pdf; Article 16 of the SADC Model Bilateral Investment Treaty Template with Commentary (2012), http://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf; Article 12.1(vii) of the Bilateral Investment Treaty between the Government of the Republic of India and --------- (2015), https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf.
- 128.
One of the first agreements in which CSR was included is the Chile-EC Association Agreement (Agreement Establishing an Association between the European Community and the Republic of Chile, signed 18 November 2002, entered into force 1 February 2003, http://investmentpolicyhub.unctad.org/Download/TreatyFile/2644 and in particular the Joint Declaration concerning Guidelines to Investors that was adopted in parallel to the agreement, providing that “[t]he Parties remind their multinational enterprises of their recommendation to observe the OECD Guidelines for Multinational Enterprises, wherever they operate” (Joint Declaration concerning Guidelines to Investors, http://trade.ec.europa.eu/doclib/docs/2004/november/tradoc_111644.pdf. While references to CSR are more common in trade agreements (see Peels et al. 2016, pp. 8 et seq. BITs also increasingly include references to it. See e.g. Agreement for the Promotion and Protection of Investment between the Republic of Austria and the Federal Republic of Nigeria, signed 8 April 2013, not yet entered into force, http://investmentpolicyhub.unctad.org/Download/TreatyFile/2972, Preamble; Article 15(2) of the Agreement between Canada and the Republic of Cameroon for the Promotion and Protection of Investments, signed 3 March 2014, entered into force 16 December 2016, http://investmentpolicyhub.unctad.org/Download/TreatyFile/3163; Article 16 of the Agreement between Canada and the Federal Republic of Nigeria for the Promotion and Protection of Investments, signed 6 May 2014, not yet entered into force, http://investmentpolicyhub.unctad.org/Download/TreatyFile/3151; Article 16 of the Agreement Between Canada and the federal Republic of Senegal for the Promotion and Protection of Investments, signed 27 November 2014, entered into force 5 August 2016, http://investmentpolicyhub.unctad.org/Download/TreatyFile/3240; Article 15(3) of the Agreement Between Canada and Mali for the Promotion and Protection of Investments, signed 28 November 2014, entered into force 6 August 2016, http://investmentpolicyhub.unctad.org/Download/TreatyFile/3239; Article 16 of the Agreement between Canada and the Republic of Serbia for the Promotion and Protection of Investments, signed 1 September 2014, entered into force 27 May 2015, http://investmentpolicyhub.unctad.org/Download/TreatyFile/3152; Article 9.17 of the Free Trade Agreement between Canada and Panama, signed 14 May 2010, entered into force 1 April 2013, http://investmentpolicyhub.unctad.org/Download/TreatyFile/2612; Articles 4 and 16 of the Agreement Between the Government of Canada and the Government of the Republic of Benin for the Promotion and Reciprocal Protection of Investments, signed 9 January 2013, entered into force 13 May 2014, http://investmentpolicyhub.unctad.org/Download/TreatyFile/438; Article 15(2) of the Canada—Côte d’Ivoire Foreign Investment Promotion and Protection Agreement, signed 30 November 2014, entered into force 14 December 2015, http://investmentpolicyhub.unctad.org/Download/TreatyFile/3242; Article 11 of the Agreement for the reciprocal promotion and protection of investments between Colombia and France, signed 10 July 2014, not yet entered into force, http://investmentpolicyhub.unctad.org/Download/TreatyFile/4771; Article 2(3) of the Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the United Arab Emirates, signed 26 November 2013, not yet entered into force, http://investmentpolicyhub.unctad.org/Download/TreatyFile/4774.
- 129.
SADC Model Bilateral Investment Treaty Template with Commentary (2012), http://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf.
- 130.
Bilateral Investment Treaty between the Government of the Republic of India and --------- (2015), https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf.
- 131.
Article 19.1 of the SADC Model Bilateral Investment Treaty Template with Commentary (2012), http://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf.
- 132.
Article 8.3 of the Bilateral Investment Treaty between the Government of the Republic of India and --------- (2015), https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf.
- 133.
Article 17.1 of the SADC Model Bilateral Investment Treaty Template with Commentary (2012), http://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf. See also Article 13 of the Bilateral Investment Treaty between the Government of the Republic of India and --------- (2015), https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf. Article 17.2 of the SADC 2012 Model BIT further provides that:
Home States shall ensure that their legal systems and rules allow for, or do not prevent or unduly restrict, the bringing of court actions on their merits before domestic courts relating to the civil liability of Investors and Investments for damages resulting from alleged acts, decisions or omissions made by Investors in relation to their Investments in the territory of the Host State.
See also Article 13.2 of the Indian 2015 Model BIT.
- 134.
Article 19.2 of the SADC Model Bilateral Investment Treaty Template with Commentary (2012), http://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf; Article 14.11(i) of the Bilateral Investment Treaty between the Government of the Republic of India and --------- (2015), https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf.
- 135.
Article 19.3 and 4 of the SADC Model Bilateral Investment Treaty Template with Commentary (2012), http://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf.
- 136.
Singer (2003), p. 45.
References
Abraham G (1999) The contemporary legal environment. In: Mills G, Stremlau J (eds) The privatisation of security in Africa. South African Institute of International Affairs, Johannesburg, pp 81–106
Avant D (2004) The privatization of security and change in the control of force. Int Stud Perspect 5:153–157
Charamba K (2017) Public-private regulation of the global private military and security industry. Bingham Centre for the Rule of Law Global Rule of Law Exchange Papers, pp 1–11
Del Prado JLG (2012) A U.N. convention to regulate PMSCs? Crim Just Ethics 31(3):262–286
DeWinter-Schmitt R (ed) (2013) Montreux five years on: an analysis of state efforts to implement Montreux Document legal obligations and good practices. https://www.wcl.american.edu/index.cfm?LinkServID=B1E626D9-095E-4A28-94A94551CEA3488E
Godfrey R, Brewis J, Grady J, Grocott C (2014) The private military industry and neoliberal imperialism: mapping the terrain. Organization 21(1):106–125
Hail JC (2009) New U.N. draft international convention on the regulation, oversight and monitoring of private military and security companies. Int Gov Contract 6(9):1–5
Hoppe H-H (1997) On certainty and uncertainty, or: how rational can our expectations be? Rev Austrian Econ 10(1):49–78
Hoppe C, Quirico O (2011) Codes of conduct for private military and security companies: the state of self-regulation in the industry. In: Francioni F, Ronzitti N (eds) War by contract: human rights, humanitarian law, and private contractors. Oxford University Press, Oxford, pp 262–380
Moran TH (1999) Political and regulatory risk in infrastructure investment in developing countries: introduction and overview. CEPMLP J 5(6):3
O’Brien KA (1998) Military-advisory groups and African security: privatized peacekeeping? Int Peacekeeping 5(3):78–105
Parra AR (2012) The history of ICSID. Oxford University Press, Oxford
Peels R, Echeverria ME, Aissi J, Schneider A (2016) Corporate social responsibility in international trade and investment agreements: implications for states, business and workers. ILO Research Paper No. 13, April 2016, pp 1–33
Phillips P, McClintock R, Carneiro M, Crabtree J (2015) Twenty-first-century fascism – private military companies in service to the transnational capitalist class. In: Huff M, Roth AL, Project Censored (eds) Censored 2016: the top censored stories and media analysis of 2014#15. Seven Stories Press, New York, pp 255–276
Reinisch A, Bjorklund AK (2012) Soft codification of international investment law. In: Bjorklund AK, Reinisch A (eds) International investment law and soft law. Edward Elgar Publishing, Cheltenham, pp 305–318
Rubins N, Kinsella NS (2005) International investment, political risk and dispute resolution: a practitioner’s guide. Oceana Publications, New York
Salacuse JW (2013) The three laws of international investment: national, contractual, and international frameworks for foreign capital. Oxford University Press, Oxford
Schill SW (2017) Sources of international investment law: multilateralization, arbitral precedent, comparativism, soft law. Amsterdam Law School Legal Studies Research Paper No. 2017-19, pp 1–22
Sellars K (1997) Old dogs of war learn new tricks. New Statesman 126(4331):24–25
Singer PW (2003) Corporate warriors: the rise of the privatized military industry. Cornell University Press, Ithaca
Singer PW (2004) War, profits, and the vacuum of law: privatized military firms and international law. Columbia J Transnatl Law 42(2):521–549
Smith DM, Stohl RJ (2000) The evolving role of military forces in human security. Paper presented at the Conference on Failed States III: Globalization and the Failed State, Florence, Italy, 7–10 April 2000. http://www.comm.ucsb.edu/faculty/mstohl/failed_states/2000/papers/r_stohl.html
Spearin C (2001) Private security companies and humanitarians: a corporate solution to securing humanitarian spaces? Int Peacekeeping 8(1):20–43
Subedi SP (2016) International investment law – reconciling policy and principle, 3rd edn. Hart Publishing, Oxford
von Mises L (1998) Human action – a treatise on economics. The Ludwig von Mises Institute, Alabama
Weber M (1994) In: Lassman P (ed) Weber: political writings (trans: Speirs S). Cambridge University Press, Cambridge
Williams SL (1993) Political and other risk insurance: OPIC, MIGA, Eximbank and other providers. Pace Int Law Rev 5:59–113
Zarate JC (1998) The emergence of a new dog of war: private international security companies, international law, and the new world disorder. Stanford J Int Law 34(1):75–162
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2019 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Vanhonnaeker, L. (2019). The Recourse to Private Military and Security Companies by Foreign Investors in Conflict-Affected Countries: Dangers, Opportunities and the Need to Regulate. In: Fach Gómez, K., Gourgourinis, A., Titi, C. (eds) International Investment Law and the Law of Armed Conflict. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-10746-8_22
Download citation
DOI: https://doi.org/10.1007/978-3-030-10746-8_22
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-10745-1
Online ISBN: 978-3-030-10746-8
eBook Packages: Law and CriminologyLaw and Criminology (R0)