11/08/2010 10:45 am ET | Updated May 25, 2011

PMC to Pirates: "You've got to ask yourself one question: 'Do I feel lucky?' Well, do ya punk?"

I've previously pointed out various articles dealing with the use of what we can call a different flavor of PMC, what we can call private maritime contractor, in order to help combat the scourge of piracy.

The latest law journal article I have come across on the subject is titled "Corsairs in the Crosshairs: A Strategic Plan to Eliminate Modern Day Piracy" published earlier this year in the New York University Journal of Law & Liberty. The author is Alexandra Schwartz, who received her J.D. this year from NYU.

Ms. Schwartz's note proposes "that the solution to the rapidly escalating problem of piracy is for the U.S. government to issue the license equivalent of historical letters of marque to private actors; thereby granting them increased legal immunity and political approval to use force to protect private vessels against piracy. Letters of marque were legal commissions granted by Congress to private citizens granting them cover to engage enemies of the country."

Interestingly, while reviewing the relevant national and international laws authorizing action against pirates she notes that some of the existing legal conventions that seemingly restrict actions against pirates to regular state forces have some loopholes.

Article 107 of the U.N. Convention on the Law of the Sea (UNCLOS) appears to limit the ability to capture pirates to states using military force: "A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to the effect." However, the United States has refused to ratify the treaty due to objections to certain other provisions, and thus is not bound by this requirement. Even if the United States were bound to follow UNCLOS as part of customary international law, the language of the Convention does not necessarily prove to be a hurdle to private action because it does not prevent the United States from authorizing private vessels to act in government service.

Even reading these provisions as denying the United States the right to authorize private offensive action, the inherent right to self-defense and even capture of pirate ships by non-military vessels was explicitly recognized by the Special Rapporteur, when questioned by several countries' delegates during the drafting of the High Seas Convention. Further, an 1819 U.S. law titled "Resistance of Pirates by Merchant Vessels," can be read to allow for a vigorous defense that involves capture and suggests that private forces can act as deterrents and enforcers against piracy:
This law, while not authorizing merchant vessels to patrol the waters for pirates, allows for forceful action to be taken in self-defense, including subduing and capturing pirates and reclaiming property. Because it does not appear that the SUA Convention or UNCLOS prevent private vessels from taking defensive action nor bar governments from authorizing private ships to affect captures on its behalf, there is no international barrier to continued use of this law.

Currently, proposals to address the pirate problem fall into two main schools of thought: regional coordination and private action. The approach to resolving the problem by utilizing the regional coordination of navies is currently the status quo in terms of both what is occurring on the ground and what the seeming majority of scholars suggest is the best way to subdue pirates in the modern world.

But Ms. Schwartz writes believes the regional coordination approach fails and that the private market, acting under the auspices of the government and within certain restrictions, could more efficiently resolve this gap.

She writes:

However, cabining the solution to the piracy quandary to the sphere of public force is unnecessarily limiting.

While multilateralism suggests a spirit of harmony and a collective bolstering of strength, it is not clearly the most practical or cost-effective way to resolve the piracy problem. Utilizing public navies geared for war to fight against criminals with simplistic motives of robbery and plunder does not necessarily make sense. The public weal is only so great, and assigning the precious resources of an already over-stretched U.S. military that is fighting wars on multiple fronts is not the only, or for that matter, the best solution. Most importantly, it has so far proven to simply not work. In April 2009, the first American-crewed ship was hijacked (at least the 6th commercial ship that week) off the Horn of Africa, demonstrating that pirates continue to operate with near impunity despite the vigorous efforts of many nations to deter them with naval warship patrols.

Thus, relying entirely upon the military not only wastes resources but also leads to poor results.

While contractor advocates often claim, without proven data to back it up, that the use of contractors is cost-effective Ms. Schwartz outlines some reasons why it might actually be true in this case.

PMFs would likely be able to requisition the necessary smaller boats and materials more efficiently than the U.S. government, and sell them on the market once no longer needed. The government, as a large bureaucracy, is inherently more slow-moving in such acquisitions due to budgetary approval processes and political considerations. The type of hefty economic investment involved in maintaining behemoth warships like the ones the U.S. is currently using in this conflict could be avoided by hiring PMFs.

Second, utilizing PMFs makes economic sense in these circumstances not just in terms of equipment, but more importantly in terms of personnel. Donald Rumsfeld, the former Secretary of Defense, has stated as much, saying "it is clearly cost effective to have contractors for a variety of things that military people need not do, and that for whatever reason other civilians, government people, cannot be deployed to do." For the military, recruiting and properly training soldiers to battle pirates could take months or years with much longer deployment lead times than the PMFs would need. Each new soldier recruited by the government requires an enormous long-term investment in the form of training, salaries, and extended benefits. PMFs, on the other hand, can quickly recruit personnel with the requisite expertise from a "global pool of former military [officers] and fill short-term contracts with finite costs." The cost savings accomplished by the PMFs structure and capabilities will be passed on to the U.S. government because the huge number of firms and intense competition will assure prices are kept down.

In general, utilizing private forces would introduce a level of flexibility that the government simply does not have. The government can authorize contracts with PMFs that employ them only on a short-term basis, allowing the government to sever its financial commitments quickly, reducing or eliminating the need for the presence of a more expensively maintained public uniformed force.

Not only does this scenario free resources for conflicts that more urgently require the sophistication of the public navies, but it is perhaps more politically digestible domestically, since it removes the chance that members of the U.S. military will be wounded or killed on the front lines battling pirates. President Clinton was able to intervene and halt the ethnic cleansing in Kosovo in part because his reliance on private contractors in supporting roles reduced the number of troop deaths at risk.

Moreover, in this situation, the U.S. government would almost certainly decrease its expenses further by involving shipping companies in the payment of contractors. Shipping companies, as previously discussed, are currently making enormous outlays in ransoms and insurance expenditures, as well as bearing the costs of diverted routes. It is appropriate, and would ultimately be cost effective, for these companies to share in the costs of hiring PMFs. The exact breakdown of payment should be hashed out between Congress and the American shipping industry, but both will be motivated to come to an agreement since each party will ultimately save in its investment. Negotiations will likely be smoother because the interests of the U.S. and its shippers are more clearly aligned as compared to the U.S. and multiple countries that often have difficulty working together because of underlying tensions or motivations.