McHarg, A.

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       McHarg, A. (2011) Simon Chesterman and Angelina Fisher, 'Private Security, Public Order': Review. Edinburgh Law Review, 15 (2). pp. 337-339. ISSN 1364-9809   http://eprints.gla.ac.uk/55830/  Deposited on: 01 May 2012   Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk Vol 15 2011 reviews 337has been analysed by Inge Govaere. In “Beware of the Trojan Horse: Dispute Settlement in(Mixed) Agreements and the Autonomy of the EU Legal Order” (ch 9), Govaere argues thatthe reasoning of the Court of Justice would be aimed at safeguarding the autonomy of the EUlegal order from being affected by dispute settlement mechanisms created under internationalagreements in favour of the EU’s own procedures.The assessment of mixed agreements would not be complete without raising the issueof the international responsibility for mixed agreements. Adopting an inductive approachto international law, Pieter Jan Kuijper discusses the case law of international courtsincluding the Behrami and Saramati decision of the European Court of Human Rights(ECtHR, joined cases Behrami and Behrami v. France, Application No.71412/01, andSaramati v. France, Germany and Norway, Application No. 78166/01, 2 May 2007) andthe Draft Articles on the Responsibility of International Organizations of the InternationalLaw Commission. Kuijper not only encourages the EU to take on the challenge toorganise itself with regard to the responsibility for mixed agreements, but he also suggeststhat this could positively influence the general law of the responsibility of internationalorganisations.Mixed Agreements Revisited addresses the multitude of practical and legal challenges mixedagreements create when they are negotiated, concluded, implemented and interpreted. Thevariety of perspectives with which the phenomenon of mixity is addressed, including amongstothers academic scholars, practitioners, judges, the view from European institutions, Europeanmember states as well as third party countries enhances awareness of the complex natureof mixity and highlights the interconnectedness of many unresolved questions that have notlost their relevance after the entry into force of the Treaty of Lisbon. Like its predecessor28 years ago, Mixed Agreements Revisited: The EU and its Member States in the World istherefore likely to become an indispensable guide to mixity for scholars, practitioners andstudents of EU external relations.Julia SchmidtEdinLR Vol 15 pp 337-339DOI: 10.3366/elr.2011.0052PRIVATE SECURITY, PUBLIC ORDER: THE OUTSOURCING OF PUBLICSERVICES AND ITS LIMITS. Ed by Simon Chesterman and Angelina FisherOxford: Oxford University Press (www.oup.com), 2009. xiv + 247pp. ISBN 9780199574124.£70.Privatisation has been a central theme of public policy worldwide since the 1980s and, in thisnew age of austerity, seems likely to remain so. This edited volume concerns what might beregarded as the extreme instance of privatisation: outsourcing of military and security functionsto private companies. Extreme, first, because it impinges upon the state’s monopoly over thelegitimate use of force and hence strikes at the core of what most people would regard as itsbasic function: to provide collective security. Secondly, it involves particularly high risks, notmerely of inefficiency, lack of accountability, corruption and subversion of public policy, butalso serious human rights abuses and even threats to security itself. Although the book focusesprimarily on the United States, both supply and use of private military and security services areglobal phenomena, driven by common pressures to reduce the size of armed forces followingthe end of the Cold War, and sometimes also by the desire to avoid full accountability formilitary actions.338 the edinburgh law review Vol 15 2011There have been occasional high profile controversies involving private military and securitycompanies (PMSCs), such as Sandline’s role in supplying arms to Sierra Leone in breach ofa UN embargo, and Blackwater’s involvement in prisoner abuse and civilian deaths in Iraq.Mostly, however, privatisation of military and security functions has occurred below the politicaland regulatory radar. Unlike other privatised functions, increased reliance on PMSCs has notbeen accompanied by new regulatory regimes, either domestic or international. Indeed, themost substantial regulatory efforts to date have resulted from self-regulation.Outsourcing of military and security functions has also largely been ignored in academicdiscussions of privatisation. This book seeks to remedy that by situating PMSCs within thebroader context of private actors performing public functions, and addresses three sets ofquestions, which supply its organising structure: (1) How do PMSCs fit within that broadercontext, and what implications does this have for the possibility of holding them to account?(2) What lessons can be learned from other cases of privatisation? (3) Should there be limitson governments’ ability to outsource traditional “public” functions?Part I opens with an interesting and wide-ranging essay by Michael Likosky exploring thehistory and contours of what he terms the “privatisation of violence” in both military andcivilian contexts. He argues that to devise effective means of accountability for PMSCs requiresan understanding of how they resemble other forms of privatisation, which in turn suggestsembracing a broader approach to accountability, including market and political, as well as legalmechanisms. The other chapters in this part do, nevertheless, focus on legal accountability.Olivier De Schutter asks whether international law obliges PMSCs’ “home” states to controltheir activities, particularly by allowing domestic courts to adjudicate claims for violation ofinternational norms, while Angelina Fisher considers whether PMSCs can and should be heldlegally accountable in the territories in which they operate. Both conclude that there aresignificant accountability gaps, especially to the extent that liability is premised upon a closerelationship between corporations and states.Part II has an explicitly comparative focus. Daphne Barak-Erez locates the privatisationof military functions at the extreme end of a continuum of security-related public functions,notably policing and prisons, many of which have been privatised for some time. AlfredAman’s chapter then focuses specifically on the lessons to be drawn from prison privatisationin terms of the limits of outsourcing policies, while Mariana Mota Prado considers thedifficulties of ensuring effective regulation of PMSCs in light of regulatory experience inprivatised infrastructure sectors. In a particularly illuminating chapter, Rebecca DeWinter-Schmitt examines the potential for effective self-regulation by PMSCs by comparison withself-regulation in the apparel industry; an industry which, like PMSCs, operates in a globalisedmarket in which states have largely forfeited any regulatory role. Part III, finally, explores threeextreme cases which, it is suggested, represent the limits of outsourcing policies: JacquelineRoss discusses the use of private informants in criminal cases; Simon Chesterton considers therole of private contractors in gathering and analysing intelligence; and Chia Lehnardt examinesthe growing involvement of PMSCs in United Nations peacekeeping operations.In truth, the question of limits preoccupies most of the contributors to this volume.This is unsurprising. The legitimacy of privatisation depends upon the appropriateness andeffectiveness of the alternative governance regimes that are available, and these essays provideample evidence of the very severe accountability and regulatory challenges that PMSCs pose,with few concrete suggestions as to how they might be overcome. Unfortunately, clear answersas to where the limits of outsourcing should be drawn are similarly elusive. In their conclusion,the editors suggest that legal accountability concerns militate against outsourcing wheresecrecy and the potential for abuse operate together, as in the cases of intelligence and policeinformants, while political accountability demands require the formulation of governmentVol 15 2011 reviews 339policy to remain in government hands, and would prohibit privatising the conduct of hostilities.Nevertheless, as they and other contributors acknowledge, the question of what functionsshould remain public is ultimately political rather than conceptual.So far, politicians have been unwilling to set clear limits to privatisation. US legislationprohibits outsourcing of “inherently governmental” functions, but this remains undefined. TheUK’s Deregulation and Contracting-Out Act 1994 does identify specific functions that cannotbe contracted-out under its provisions, but the list is very narrowly drawn and, interestingly,does not expressly include military functions. It is, of course, still possible that privatisationmight be deemed unacceptable in particular cases. Nevertheless, on the evidence presentedin this book, it seems unlikely that outsourcing military and security functions will cease anytime soon. The political reality appears to be that domestic audiences do not care enough topress for change, even in the face of revealed abuses, while international organisations aretoo weak to do so, and anyway, subject to the same pressures as states to engage in moreand more operations with insufficient personnel. In fact, the strongest moves to distinguishlegitimate from illegitimate activities have come from within the industry itself, but there mustbe serious doubts about the adequacy of self-regulation in this regard. In conclusion, this bookcasts valuable light on a neglected aspect of privatisation. However, it might have been moresuccessful in advancing understanding of its general themes if the contributors had made morereference to the highly sophisticated, but largely non-US, theoretical literature on privatisation,regulation and accountability that already exists.Aileen McHargUniversity of GlasgowEdinLR Vol 15 pp 339-340DOI: 10.3366/elr.2011.0053Jan Klabbers, Anne Peters and Geir Ulfstein, THE CONSTITUTIONALIZATION OFINTERNATIONAL LAWOxford: Oxford University Press (www.oup.com), 2009. xx + 393 pp. ISBN 9780199543427(hb). £63. ISBN 9780199693542 (pb). £24.99.There has been no shortage of publications on the constitution of the international community,or on the constitutionalization of international law or of specific “sectors” of international law(e.g. trade law) for that matter. Any number of international documents, sets of documents,or sets of rules has been claimed as constituting the international (legal) community, from theUnited Nations Charter to jus cogens norms to the judicialisation of international trade lawto human rights obligations. And, to make matters worse (or at least more confusing) variousunderstandings and conceptions of the terms “constitution” and “constitutionalization”, notto mention “international community”, have been offered. As a result, it becomes hard todisagree with a contention that x or y is the “constitution of the international community”, when“constitution” is understood in this way and “international community” in that. All this on top ofmore or less cognate projects to demonstrate the emergence of a global administrative – ratherthan constitutional – law.In the midst of this burgeoning discussion on the potential existence of an internationalconstitutional order, the book by Klabbers, Peters, and Ulfstein seeks to sketch what shape theconstitutionalization of international law might possibly take (rather than showing definitivelywhat the constitution of the international community is). In this, the tone of the bookis decidedly normative, setting out what should happen for international law to becomeconstitutionalized. Constitutionalization represents, in the authors’ view, an appropriate (if not

Simon Chesterman and Angelina Fisher, '<i>Private Security, Public Order</i>': Review

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Simon Chesterman and Angelina Fisher, '<i>Private Security, Public Order</i>': Review

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