Background Note
Private actors are increasingly taking on roles traditionally arrogated to the state. In the industrialized north and the developing south, functions essential to external and internal security and to the satisfaction of basic human needs are routinely contracted out to non-state agents. In the area of privatization of security functions, attention by academics and policy makers tends to focus on the activities of private military and security companies (PMSCs), especially in the context of armed conflicts, and their impact on human rights and post-conflict stability and reconstruction. Using insights from work on privatization, regulation, and accountability in the emerging field of global administrative law, this conference situates PMSCs in the larger context of private actors performing public functions with the goal of identifying elements of a governance regime that could be used by providers, consumers, regulators, and academic commentators in developing a regulatory framework for PMSCs.
The conference is spread over five sessions. The first session examines the PMSC phenomenon by placing it within the broader contexts of globalization and state outsourcing of public functions. The second session examines global legal regimes and regulatory mechanisms that govern the activities of private actors in the security sector. The third session draws on governance models of other private industries performing public functions in order to identify regulatory elements that could be applied to PMSCs to ensure accountability and prevent abuses. The fourth session examines applicable laws and regulatory challenges particular to privatization of specific military and security services. The final panel will seek to distil policy implications, including what limitations, if any, should be placed on states’ ability to contract out security services.
The discussion will range broadly across regulatory and governance issues in private provision of public functions, but will focus primarily on private actors providing services that impact the fundamental rights of the affected population. The discussion of private security sector will focus primarily on security services that have a potential for lethal use of force.
Overview
The conference aimed to situate privatization of security in the larger context of private actors performing public functions with the goal of identifying elements that could be used in developing a regulatory framework for private military and security companies. The discussion drew on the insights from work on privatization, regulation, and accountability in the emerging field of global administrative law.
Speakers included: Francoise Hampson, University of Essex; Michael Likosky, University of Wisconsin; Olivier De Schutter, Catholic University of Louvain; Chia Lehnardt, Humboldt University; Gabor Rona, Human Rights First; Mariana Mota Prado, University of Toronto; Fred Aman, Suffolk University Law School; Laura Dickinson, University of Connecticut School of Law; Jacqueline Ross, University of Illinois College of Law; Simon Chesterman, New York University School of Law and National University of Singapore; Erica Razook, Amnesty International; Daphne Barak-Erez, Tel Aviv University; and Ryan Kelty, West Point University.
The conference took place over two days, April 3rd and 4th, at the Lester Pollack Colloquium Room, Furman Hall, 245 Sullivan Street, New York 10012.
In conjunction with the above conference, the Center on Law and Security hosted a discussion on Privatizing Defense: Blackwater, Contractors, and American Security. The discussion, co-sponsored by the Institute for International Law and Justice, focused on the outsourcing phenomenon and its ramifications for American institutions, the future of the military, and the national security community, and will feature speakers from within the private security industry, journalists, and lawyers.
Agenda
Privatization and Public Order: Globalization and Privatization of Public Security Functions
What are some of the principal issues raised by the private parties engaging in “public functions”? What are the strengths and weaknesses of different regulatory approaches and the mechanisms — traditional and non-traditional, formal, and informal — that have been invoked to respond to this trend? What are the similarities and differences between the privatization of security and privatization of other public functions? Should questions of governance for the private military and security sectors be considered within the broader governance framework for multinational corporations? What functions have PMSCs have taken on in the context of UN peace missions?
Chair
Simon Chesterman, New York University School of Law and National University of Singapore
Private Parties, Public Functions: Issues in Global Security Governance
Michael Likosky, University of Wisconsin
Globalization and the Rise of the Private Military and Security Industry
Francoise Hampson, University of Essex
Privatizing Peace? The United Nations, Peacekeeping and PMSCs
Chia Lehnardt, Humboldt University
Discussant
Victoria DiDomenico, Center on International Cooperation
Privatization and Contracting-Out of Public Functions: Lessons from Global Legal & Regulatory Regimes
What international legal and regulatory regimes govern the activities of multinational corporations? What are the strengths and weaknesses of such regimes? What lessons can be drawn from the international regimes for governance of PMSCs? What are the prospects for regulation of private actors by international humanitarian law? What roles do various stakeholders (state, private actors, affected populations, etc.) play in monitoring and enforcement of the humanitarian legal regimes? What roles have they played in efforts to adapt to the increase in private actors?
Chair
Philip Alston, New York University School of Law
International Regulatory Regimes Governing Multinational Corporations in the Security Sector
Olivier De Schutter, Catholic University of Louvain
International Humanitarian Law Governing Private Actors in Armed Conflicts
Gabor Rona, Human Rights First
Discussant
Angelina Fisher, New York University School of Law
Privatizing Defense: Blackwater, Contractors, and American Security, hosted by the Center on Law and Security and co-sponsored by the IILJ
Privatization and Contracting-Out of Public Functions: Lessons from Industries
What issues or concerns have been raised by the privatization of the industry or sector? What are some of the common arrangements between the state and the service provider? What type of regime(s), if any, governs the private provision of services? Are there mechanisms to prevent abuses and ensure accountability? If so, how are they structured? What are the strengths and weaknesses of the regulatory regime(s)? What are the respective roles of various stakeholders (state, private providers, consumers, etc.)? What lessons can be drawn from the particular industry for governance of other private actors providing public services, in particular PMSCs?
Chair
Euan MacDonald, New York University School of Law
Privatization of Public Utilities: The Latin American Experience
Mariana Mota Prado, University of Toronto
Privatization of Correctional Facilities
Fred Aman, Suffolk University Law School
Discussant
Surabhi Ranganathan, New York University School of Law
Public Order: Limits on Privatization of Security Services
What are the main issues raised by the privatization of security functions? What regulatory framework, if any, applies to the private security service providers? What are the strengths and weaknesses of such framework? What are the gaps? What are the implications of private policing and private security services for democracy? Should limitations be placed on the type of security services that the state can contract out to private parties? If so, what should be the decision-making process for setting out such limitations?
Chair
David Golove, New York University School of Law
Private Security Companies: the U.S. Experience
Laura Dickinson, University of Connecticut School of Law
Privatization of Internal Security and Law Enforcement
Jacqueline Ross, University of Illinois College of Law
Privatization of Intelligence Services
Simon Chesterman, New York University School of Law and National University of Singapore
Discussant
Karen Greenberg, New York University School of Law
Policy Implications
Drawing on the preceding discussion, what limits, if any, should there be on government capacity to outsource traditionally public functions? Where such functions are privatized and private actors thereby undertake tasks that affect the fundamental rights of a population, what regulatory framework is most effective and realistic in protecting those rights? What are the prospects for regulating PMSCs in particular?
Chair
Simon Chesterman, New York University School of Law and National University of Singapore
Panelists
Erica Razook, Amnesty International
Daphne Barak-Erez, Tel Aviv University
Ryan Kelty, United States Military Academy
Discussant
Andy Michels, International Civilian Organization / European Union Special Representative – Pristina, Kosovo
