Research On The Dilemma And Approaches Of The International Regulatory Regime On Private Military And Security Companies

As one of the signs of the privatization of war,private military and security companies(PMSCs)generally operate in unstable high-risk areas.And it is connected to armed conflicts and human rights abuse ever since it appears.After multiple human rights infringement conducted by employees of PMSCs without accountabilities,the international community came to realize that neither the international law regime nor the domestic law regime offers an effective mechanism to hold them accountable.Starting from the traditional dilemma of international legal regime on PMSCs,this article discusses the direct and indirect regulatory approaches of current international law on PMSCs,and sorts out the latest developments in PMSCs' international regulations.Chapter I of the article demonstrates the dilemma of traditional international regulations.Firstly,on the basis of the current combatant/civilian dichotomy of international humanitarian law,PMSCs employees can avoid being identified as combatants or mercenaries by circumventing certain conditions.Hence the law on the regulation of individual legal status under the framework of international humanitarian law can hardly regulate employees of PMSCs.Secondly,according to the state responsibility mechanism,PMSC,a non-state entity,the threshold to attribute its behavior to the state is so high that it is difficult to be identified as a state organ,exercising governmental authority,or under the control of the contracting state.Chapter II analyzes the direct international regulation approach of PMSCs.There are currently 3 specialized international legal instruments related to PMSCs.Although the obligations of PMSCs are directly stipulated,none of the 3 documents is legally binding,so the actual regulatory effect is very limited.In addition,as one of the business enterprises,the developing "soft law" of the corporate social responsibility doctrine also has a certain direct regulatory effect on PMSCs.However,due to the lack of legal binding force,the soft law for PMSCs still has a very limited regulating effect.Chapter III turns to the indirect approach for the regulation of PMSCs under international law,which means to set out obligations for relevant states.As the manifestation of due diligence obligations of states,the extraterritorial human rights protection obligation for state and the obligation of "respect and to ensure respect" under the common Article 1 of Geneva Conventions both require the states to take measures to regulate PMSCs so that they will respect international human rights law and international humanitarian law.Yet the conductive nature of this due diligence obligation leaves the country with room to shirk its obligations.Chapter IV reviews the results of previous sessions of the open-ended Intergovernmental Working Group on PMSC under the UN Human Rights Council.Judging from the outcome of these sessions,states have gradually reached agreement on the content and elements of the international regulatory framework for PMSCs,but there is considerable disagreement on whether the regulatory framework can be formulated as a legally binding document.Based on China's statements at relevant meetings,China's position on the international regulation of PMSCs is to participate actively and to respond cautiously.It holds a neutral attitude to the idea of a legally binding instrument on the international regulation of PMSCs.At the domestic level,China should appropriately relax restrictions on private security industry policies to enhance its overseas competitiveness,and at the international level,it should support the legally binding international regulatory framework.