By Simon O. Williams, BA, LLM
Despite global regulation grounded in the international Law of the Sea (specifically, UNCLOS) and a myriad of coastal, port and flag state policies, major institutional gaps remain in the regulation of private maritime security. From a governance perspective, many argue that there is a dire need for new approaches and instruments to enhance regulation, increase harmonization of rules, set standards and ensure compliance. Experts cite that the best way to catalyze such change is by developing a soft-law framework.
What Is Soft Law?
Voluntary certification schemes and codes of conduct, known as soft law, are non-legally binding instruments; often used when there is uncertainty or ineffective hard law. Parties to soft law may behave in ways they negotiate and voluntarily agree to. In this case, their actions reflect the industry attempting to preempt government or international regulation to make standardization less painful and set trends in order to shape the future hard legal requirements in their sector.
Soft-law market responses to the maritime security industry boom, such as the emergence of industry-led regulations, codes of conduct and certification schemes, add order, oversight and accountability to this industry, closing the governance gaps left open in hard-law frameworks. Their introduction stems from a widespread commercial perspective that it is better to create industry controls, even self-imposed ones, now than to launch new government regulations later that will bring the industry to a screeching halt.
To close regulatory gaps and to develop some level of oversight and legitimacy, multiple voluntary industry-wide codes of conduct, certification schemes and guidelines have cropped up. Actions have been taken through consortiums of public and private partners interested in setting standards and improving best practices in this often considered unwieldy industry. The maritime security industry has proactively created such standards and best management practices for itself, preempting government involvement. These soft-law standards have even helped shape government and international regulatory policies toward the use of privately contracted armed security personnel (PCASP).
Advantages of Soft Law
What are the advantages of soft-law? It is low-cost, involves fewer meetings, fewer procedures, less bureaucracy, and is an excellent way to provide guidelines, develop interests and build momentum to evaluate program effectiveness before rolling out a hard-law package. The disadvantage of soft law is that it does not require compliance by states or parties who do not want to change, which ironically are often the targets of the instrument.
Even if the industry has historically not been a major supporter of armed guards, all elements that reluctantly accepted the role of PCASP sought a code of practice for the use of force and a clear oversight structure for the provision of security. The industry has established “self-regulating” doctrines beyond the limited hard-law frameworks.
This means that corporate management sets or adopts international industry standards for their organization to follow. Historically, if the private military contractor industry in Afghanistan and Iraq is any guide, there is a ’race to the bottom’ as providers respond to competitive pricing in an unregulated environment. But industry standards have emerged to provide a minimum threshold for quality services.
The reporting of incidents that are resolved without damage to the ship or injury to the crew is also effectively disincentivized since the reporting company may open themselves to lengthy investigation and review of certification and training. To further complicate matters, confidentiality agreements banning incidents from being reported to outside agencies are sometimes incorporated as a part of the maritime security company’s contract with the shipping company.
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