Our latest entry in law journal articles on private military contractors is "Why Private Mercenary Companies Should Be Legitimized and Allowed to Enter the World Stage." This was published in the spring 2009 issue of the New England Law Review.
The author is Edieth Y. Wu, who is Professor of Law at the Thurgood Marshall School of Law at Texas Southern University.
In a mere 16018 words, which is positively svelte by law journal standards, she makes the argument "Like the multinational, PMCs have the potential to impact domestic and international politics and "spread wealth, work, technologies that raise living standards and better" the lives of millions, which gives them an opportunity to participate in the global economy."
That's a fairly bold assertion. Even PMC trade associations don't normally make such a claim, as it puts PMCs right up there with Apple, Google, and Microsoft. And not even Eric Prince, back when Blackwater was at the top of the PMC heap, would go that far.
Still, once you get past the fact that Professor You is calling PMC a "mercenary" company - you would think a law professor of all people, trained to used word with exactitude, would know better - she has some intriguing things to say regarding PMC regulation.
In particular, she calls for the United Nations Security Council, to support a resolution to legitimize properly registered PMCs. She writes, "The U.N. is in the best position and can "bring essential assets to bear on any effort to deal with pressing problems" of PMCs. The U.N. has legitimacy because it represents the world and can call on nations to assist in situations that affect humanity as a whole. The U.N. should pass an "Emergency Private Mercenary Company Resolution" (Emergency PMC Resolution) similar to the resolutions that address measures to prevent international terrorism."
She notes there is precedent.
After the September 11, 2001 attack on the United States, the U.N.'s response was decisively unprecedented and swift. Resolution 1368 was unanimously adopted by the Security Council within twenty-four hours of the attack. The Resolution called for all States to work to bring the perpetrators to justice, and it called for the "international community to redouble their efforts to prevent and suppress terrorist acts." The same swiftness and assurance of support should accompany the Emergency PMC Resolution. The Emergency PMC Resolution would legitimize reputable companies that are willing to comply with the Emergency PMC Resolution and the augmented three-tiered process. The Emergency PMC Resolution should be drafted under Chapter VII of the Charter because it addresses threats, breaches, and aggression against the peace of the international community.
The Resolution would require all member nations to pass and enforce national legislation making it compulsory for all PMCs to register with the U.N. under their home country's membership. After the company registers, all of its employees would then be designated as having dual nationality. That is, nationals of their home state and nationals of their company's state, analogous to the situation in the Merge case. The individual's dominant nationality would be the nationality of his contracted employer, the PMC, based on the dominant nationality principal. A mercenary would also be subject to the municipal court system of his or her employer's home country because of the voluntary contacts and participation in said activity.
Of course, trying to define "reputable companies" is akin to determining how many angels can fit on the head of a pin. Maybe we can outsource that task to Jesuits, as they have a reputation for arguing over the obscure.
But what is really breathtaking is this:
First, mercenary companies should not be placed under regulations that control state-run militaries; instead, mercenary companies should be designated through a U.N. Resolution as a "Quasi-State," a cross between a multinational corporation and a non-governmental organization. Because the designation would flow through the U.N. and its members, the necessity for global harmonization and legitimacy would be unquestioned. The "quasi-state" status would be viewed as global entities who are allowed to operate as a result of a decision by the community of nations. These Quasi-State companies would be given semi-international legal personality so that they would be subject to the International Court of Justice's jurisdiction as well as the ICC's, which already has the power to adjudicate individual defendants. Large PMCs are "no longer ordinary players on the international scene, [these] corporations have achieved effective global governance by virtue of their control of economic" and military expertise. Additionally, they have "rights or duties," in the global community and should be evaluated based on the "extent to which other legal persons resemble states in their ability to bring [and have] international claims" brought against them. Corporations have been branded as "corporate states"; this is not a U.N. or state designation. To date, "states are unwilling, also, to elevate corporations to the status of a nation." They "may be a party to a contract recognized by international law and possibly become a subject ... but this does not invoke legal capacity to act like a nation." The opportunity to bestow the quasi-state designation allows world leaders to not only place controls over a growing and specialized corporation but also allows them to protect global citizens at the same time. The insecurity concerning PMCs has created an avenue "to re-establish democratic control" n198 and enhance oversight over this growing multinational corporate segment. A clear message would be articulated that corporations "are legally not more significant than a single human being or a non-governmental organization ... . False [they] are just nationals like other nationals in international law," except they would now be subject to stricter scrutiny for acts committed as a result of their business activity, enhanced prosecutorial reach extended to the ICJ, ICC, and national courts.
In one way this actually makes sense, sort of. After all Vatican City is a sovereign city-state with an area of approximately 110 acres and a population of just over 800. As the capital of the Catholic Church, it is the headquarters of a global corporation, albeit of the theological variety.
By contrast Xe Services, formerly Blackwater, another multinational, has a headquarters of 7,500 acres and its firepower far outstrips that of the Swiss Guard who protects the Vatican. If they go to war someday I know who I'm putting my money on.
And if a PMC decided not to play ball with this arrangement? Prof. Yu writes:
PMCs that refuse to cooperate would be classified as "Rogue Companies" and could be prosecuted by another state under the principles of preemptory norm (jus cogens) ( http://definitions.uslegal.com/j/jus-cogens), if the home state refused or was unable to prosecute. Similar to the difference between pirates and legitimate privateers, unregistered companies would be treated like pirates - illegals - and would thus suffer strict and swift punishment. Illegal or unregistered companies would be subject to the U.N.'s declaration that they "violate the purposes and principles enshrined in the Charter." As a result, states would be mandated to "take the necessary steps and to exercise the utmost vigilance against the menace posed by the activities ... and to bring to trial those found responsible, or to consider their extradition, if so requested, in accordance with domestic law and applicable bilateral or international treaties."
So, if you are willing to accept the initial premise we could, theoretically, have states issue contracts to PMC to apprehend and bring to justice the perp, oops, I mean the disreputable PMC. It's rather like the concept of issuing letters of marquee to fight pirates, which, after all, is in Article 1 of the U.S. Constitution.
Hmmm, PMC as pirates? I'll go out on a limb and say PMC probably want to avoid something that could put them in an equivalent status. After all, piracy is considered a breach of jus cogens, an international norm that states must uphold. Pirates are considered by sovereign states to be hostis humani generis (enemies of humanity).
Still, I hope PMCs do get quasi-state status, if only so we can see PMC representatives pontificate like all the others at the U.N. General Assembly and the Security Council. Perhaps Eric Prince can come out of retirement and be designated Xe Services' UN ambassador.