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PMSCs IGWG – U.S. Statement on the Option of a Legally Binding Instrument
“The option of elaborating a legally binding instrument”
August 31, 2012

Statement by the Delegation of the United States of America

Open-Ended Intergovernmental Working Group on
Private Military and Security Companies, August 13-17, 2012

 Thank you Mr. President.  As we have said, and to use the words of the mandate of this Working Group, we are open to “consider[ing] the possibility of elaborating an international regulatory framework” – and, indeed, through the Montreux Document and the Code are working in this line.  But we are not prepared to support “the option of elaborating a legally binding instrument.”

First, the case has not been made that we need a convention.  There has been far too little discussion of the scope and nature of the problems states need to address for us to leap to conclude that a convention is the only way to address them.   We have not had sufficient opportunity to discuss the various and constantly evolving facets of and activities undertaken by PSC and PMCs.  Nor have we had informed discussions about the approaches states have already taken to licensing, or vetting of PSCs or PMCs before contracting with them or supervision of or accountability for their activities under contracts concluded with them.  We believe that those conversations are the most effective way to help inform and guide state approaches to regulation.

Second and relatedly, it is premature to consider a possible convention.  The groundwork has not been laid.  We need more time to see how initiatives such as the Code and various performance standards translate in practice and how national legal regimes develop to address these varied concerns.  Hastily drafting a convention can only result in an instrument that fails to attract a significant number of ratifications, which would result in the same patchwork approach that convention advocates point to as the reason why a convention is needed in the first place.  Worse, it would also divert attention and resources from other possible efforts to help prevent human rights related abuses by employees of PSCs and PMCs and ensure accountability for such abuses if they occur.  There is much that can and should be done to promote best-practices and coordination among states, and between states and other stakeholders, if we can focus on issues that we all agree require further attention.

Finally and most fundamentally, a one-size-fits-all approach is not appropriate.  We would ask — Do states really all have the same concerns?  Are the concerns the same with each sector of the industry?  Does it matter whether what is contemplated is connected to an ongoing armed conflict or not?

As we have seen with the earlier draft convention prepared by the Working Group on Mercenaries, there could be unintended consequences to an unnuanced approach.  For instance, to give just two examples, the draft convention proposed by the Working Group would have burdened a range of actors who do not need international regulation, such as private security guards at hotels and cybersecurity consultants.  The draft convention would also have seriously threatened assistance programs – not only military assistance programs, including to UN peacekeeping operations, but also humanitarian and health programs staffed by contractors — as the draft convention would have prohibited private companies from participating in “knowledge transfer” with military, security or police application.  These sorts of overbreadth problems not only characterize the existing draft convention, but would also likely characterize other possible binding instruments.  While we agree with the Working Group on Mercenaries that there is room for further discussion and clarification related to when, where, how, and what states can do to ensure better regulation and accountability with regard to these industries, we remain convinced that any attempt to craft rigid answers to these questions and cram them all together in a single, uniform instrument will not succeed.