A/HRC/36/47
weak national legislation and enforcement mechanisms, along with ad hoc and
fragmented industry self-regulation, cannot address human rights concerns
effectively.
63.
Licensing, registration, vetting of personnel, the scope of permissible and
prohibited activities, the use of force, the use of firearms and other weapons,
accountability and remedies for violations — especially in the light of the
transnational nature and activities of private military and security companies — are
all areas in which national legislation is wanting.
64.
Even though a private military or security company may be registered in State
A, may recruit personnel from States B, C and D, and may enter into a contract with
State E (or a private entity in State E) to perform services in State F, few countries
have national legislation that covers the activities of private military and security
companies abroad. Considering the transnational nature of private security and
military services, insufficient national regulation seriously weakens the rule of law.
Where borders between countries are porous, it is necessary to fill the gaps and
promote international, regional and subregional agreements for the regulation of
private military and security companies, to effectively protect the rule of law, human
rights, and, especially in conjunction with the use of private military and security
companies in extractive industries, the exercise of the right of peoples to selfdetermination. The Working Group encourages States to promote discussion of the
role of private security companies in the context of regional and international
security, and therefore incorporate such discussions into the agendas of
intergovernmental, regional and subregional organizations.
65.
In order to ensure the restriction of the use of force to that which is necessary,
mandated and proportional, in accordance with international law, regulation is
necessary to outline clear conditions regarding the use of force, especially in relation
to the right to self-defence. There should also be some consideration given to the
distinction between offensive and defensive use of force. It should be noted that while
the distinction might be workable in non-armed-conflict contexts governed by
international human rights law, it does not work in armed conflict, where defending a
legitimate military objective (i.e. being a voluntary human shield) amounts to direct
participation in hostilities and renders private military and security company
personnel targetable under international humanitarian law.
66.
The Working Group welcomes the strengthening of national legislation to fill
the regulatory gaps that have been identified in its global study. The Working Group
also acknowledges the valuable impact of the Montreux Document and the
International Code of Conduct for Private Security Service Providers in improving
regulatory standards across the private military and security industry. However, both
national legislation and voluntary initiatives have limitations in ensuring
accountability and access to effective remedies when human rights violations are
committed by private military and security company personnel, particularly in
transborder contexts.
67.
The Working Group thus reiterates its call for an international legally binding
instrument to ensure consistent regulation worldwide and adequate protection of the
human rights of all affected by the activities of private military and security
companies. An international legally binding instrument can provide a standard
regulatory framework and single dedicated body on issues related to the activities of
private military and security companies, including accountability and the availability
of effective remedies for victims.
68.
A body established by an international legally binding instrument could be
responsible for the licensing, regulation and monitoring of private military and
security companies and could incorporate clear human rights and humanitarian law
standards into contracting, licensing and monitoring procedures. Such procedures
could also be the basis for due diligence, to introduce human rights-based vetting
mechanisms as well as mandatory legal training on international human rights and
international humanitarian law standards as a criterion for obtaining a licence to
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