A big hat tip to David Isenberg for finding this paper and writing an excellent article about it. Also bravo to the California Law Review for publishing this paper and hopefully between this site and David’s, we can really promote this thing. I am always on the lookout for modern legal interpretations of, and the possible uses for the LoM.
It is also cool that the author of this paper is an officer in the US Navy and a current JAG student. Maybe he can come up and talk a little about any feedback he has received for this paper, and the reason why he chose this particular topic.
Now for a couple of points of interest. Lt. Hutchins is more focused on an international LoM system, as opposed to countries issuing LoM’s. You know, I don’t think this approach would work, just because personally speaking, I would rather answer to the laws and customs of my own country versus answering to an international court. What is to prohibit any biases towards me and my nationality in such a international court? So personally, I would much rather have a LoM issued by a country whose legal system I trust and would give me the best odds in a trial of my peers–from my country.
I still think companies would seek an internationally issued LoM. Especially if the profit margin was there. If it is not, then the risk will definitely not equal the reward and this industry will not thrive. You really need to make the enemy into the ‘Blufin Tuna’ or ‘Buffalo’ of prizes.
Which brings me to my next point. Offense Industry requires a strong profit motive for the destruction or capture of a declared enemy. The reward must equal or be greater than the risk in this case. I tend to lean towards greater than the risk, just because we want extreme competition for this highly valuable enemy.
So the question with this is if the enemy has enough assets that can be seized and decided upon in a prize court. The guys with the money are on land or hiding out in Dubai or wherever. How will a company be able to seize their assets on the international stage?
Now privateers like Captain Morgan did do land raids to capture enemies and their assets. He was quite successful at it, and if we were to target Somali pirates, then allowing companies to raid wealthy Somali investors in Somalia or elsewhere would be key. But then that would require special agreements with those countries that these investors are hiding in. The LoM would have to be very specific and comprehensive in this regard.
Or, the issuing party could throw in bounties and create a false market out of the whole thing. To artificially attach value to these targets, as well as allow companies to seize assets. That to me would be optimum, just because you really have to sweeten the pot for companies to get involved with this thing. Perhaps the 10 percent that governments would receive via prize courts, would go back into the pot for bounties and costs of running prize courts? Raising money for bounties is a factor when creating artificial values of targets.
I also applaud the author for identifying how expensive the current Defense Industry is for maritime security. I have mentioned in the past that DI’s are costly, and they do nothing to eliminate the problem. If anything, DI’s profit from the continuation of war or piracy, and it is against the best interest of these participants to remove the very thing that gives them their reason for existence. But DI’s have their place, and I believe that in order to reduce the costs of DI, you need to also implement an offensive capability. You will always need guards to protect that in which you love, but you must also have a force tasked with hunting the bad guys–to keep them off balance and put them on the defense. And ultimately, you would like to make piracy into a very unprofitable game for all parties thinking about getting into that business.
Finally, I would like to add one more deal to this review, just to emphasize the significance of profit and reward in warfare. This quote comes from Sun Tzu.
Now in order to kill the enemy, our men must be roused to anger; that there may be advantage from defeating the enemy, they must have their rewards…Therefore in chariot fighting, when ten or more chariots have been taken, those should be rewarded who took the first. Our own flags should be substituted for those of the enemy, and the chariots mingled and used in conjunction with ours. The captured soldiers should be kindly treated and kept….This is called, using the conquered foe to augment one’s own strength.- Paragraphs 16, 17, 18, Chapter 2, ‘Waging War’.
Even Sun Tzu understood the value of reward in war. Might I add that the interpretation of ‘rewards’ refers to spoils, and not some ideological reward of just ‘winning’. Although that has it’s place for incentive, but feeling good about a win does not pay the bills as they say. lol
I should also note that Sun Tzu also delved into the concept of the cost of protracted war. It is expensive, and if there is no element of a strategy focused on eliminating an enemy, and industry is only used for defense, then the costs will continue to drain the treasures of those nations and companies with interest in the matter.
There is no instance of a country having benefited from prolonged warfare…It is only one who is thoroughly acquainted with the evils of war that can thoroughly understand the profitable way of carrying it on. –Paragraphs 6,7, Chapter 2, ‘Waging War’.
That pretty much sums up why wars should be fought as quickly as possible, and why there should be thought about creating an industry that profits from ending it, and not ‘carrying it on’. Something to give balance or even counter strong DI’s that come about from prolonged warfare. –Matt