What are the Effects of the Montreux Document?
Since the end of the Cold War, there has been an increased and broad privatisation of the security sector. Private military and security companies (PMSCs) offer ever-varying services from escorting convoys to instructing and advising armed forces. Private military and security companies (PMSCs) offer ever-varying services from escorting convoys to instructing and advising armed forces. Among the important documents regarding Private military and security companies, there is the “Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict” (Montreux Document). Adopted in 2008 by 17 States (currently by 56 States), this document is the result of series of intergovernmental meetings led by Switzerland and the International Committee of the Red Cross (ICRC) over several years. Although the document is non-binding, it recalls the international responsibilities of States. In brief, “the Montreux Document translates international legal obligations into good practices”1. Designed to promote good practices to guide States, its application is visible thanks to the implementation of their obligations.
Since States signed the Montreux Document, there has been a broadening cooperation between the different parties. Indeed, conferences and discussions are organized for the purpose of sharing experiences and challenges2. Moreover, thanks to the fact that international organizations are also part of the talks, the scope of cooperation is wider. The regularized dialogue determined by this Document enables the latter to not fade.
A further consequence of the implementation of the Montreux Document is the several new reforms that have been carried out. This document encourages the adoption of new national regulations and establish standards of behaviour for private security contractors. Its objective is to grant “guidance and assistance to States in ensuring respect for international humanitarian law and human rights law and otherwise promoting responsible conduct in their relationships with PMSCs”3.
The Montreux Document is considered as credible
Looking at the international community, the Montreux Document is well considered insofar as it is a source of inspiration for newer initiatives, including the Canberra Working Group4. The corrective power that is contained in the document allows all parties to name and shame the reluctant side. Although the Montreux Document contains statements recalling the main international obligations, it represents a clear and firm public reaffirmation of the importance of protecting people affected by armed conflicts5.
Being the principal subject of an international document, PMSCs have been brought to greater prominence6. Their existence is accepted within the international order insofar that they are taken as granted7. Therefore, PMSCs’ presence and activities are tolerated in various contexts, including armed guarding in peacetime or in conflict zones. An interesting argument brought by Ian Ralby is the emergence of a custom relating to the acceptance of PMSCs. Indeed, he claims that they are considered by the international community “as acceptable, legal actors within the international field”8.
Again, the argument of the non-compulsory character of this international document can be put forward. Although the parties are required to observe and respect the obligations coming from the international law, they are not legally constrained by the Montreux Document and its good practices. Thus, a large number of countries are reluctant to take part in this project. This argument weakens the credibility and restricts the effects of the Montreux Document. Nevertheless, the fact that States have made ongoing efforts to adapt their legislation proves that the Document is recognized by its participants. The diversity of actors concerned by it also highlights the wish to come together around the same table to regulate the role of PMSCs and their activities.
1 Buckland, Benjamin S. &, Burdzy, Annie, “Progress and Opportunities, Five Years On: Challenges and Recommendations for Montreux Document Endorsing States”, DCAF – Geneva Centre for Security Sector Governance, 2013, p.14
3 The Montreux Document, Federal Department of Foreign Affairs & International Committee of the Red Cross, 2008, p.16
4 Lee, Peter; Baker, Deane-Peter; Hahn, Erin & MacLeod, Ian, “Guiding Principles for the Development and Use of Lethal Autonomous Weapon Systems”, The Canberra Working Group, 2019.
5 Cockayne, James, “Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document”, Journal of Conflict and Security Law, Volume 13, Issue 3, Winter 2008, p.406
6 Hagedorn, Ann, The Invisible Soldiers: How America Outsourced our Security, Simon & Schuster, 2014, p.139
7 Suchman, Mark, “Managing Legitimacy: Strategic and Institutional Approaches”, The Academy of Management Review, Vol. 20, No. 3, July 1995, p.583 3, July 1995, p.583
8 Ralby, Ian, “The Montreux Document: The Legal Significance of a Non-legal Instrument”, in Gary Schaub Jr. & Ryan Kelty (eds), Private Military and Security Contractors: Controlling the Corporate Warrior, Rowman & Littlefield, 2016, p.255