Feral Jundi

Monday, July 25, 2011

Letter Of Marque: California Law Review–Structuring A Sustainable Letters Of Marque Regime, By Todd Emerson Hutchins

Excellent paper and I recommend checking out the whole thing with the provided link below. The section that I was particularly interested in is the International Law portion. I continue to hear arguments against the Letter of Marque, and no one really has a firm legal foundation for their argument. Or at least that’s what it seems to me. It is just assumed or the ‘opinio juris’ is that issuing Letters of Marque is a no go, and this paper clearly identifies the counter argument to this belief.

So that is why I posted this, and I hope that the legal counsels of countries that are looking for arguments for firing up their LoM or introducing legislation for such a thing, will have some resource to draw from. And what is really nice with legal papers like this, is they are heavily sourced and footnoted, just so they can back up their arguments. The footnotes alone are worth reading, just because they indicate how much the LoM has been talked about in legal circles. Lot’s of opinions, and this is a good collection of them.

In this particular section I posted below, the author identifies two reasons why states believe they are prohibited from privateering and issuing letters of marque, based on their interpretation of the Declaration of Paris and of International Law. One is opinio juris and the other is state practice that influences this interpretation.

State practice refers to “consistent conduct,” while opinio juris means States follow the rule out of “belief” that they are legally obligated to behave in a certain manner.

One of the reasons why I started the Letter of Marque category is to remind states of the practice of privateering, and to remind those who are establishing a legal basis for the act, that countries like the US have a history of consistent conduct when using privateers(it was used in multiple conflicts). And because the US is not a signatory of the Declaration of Paris, then that is interpreted as an ‘objection’ to banning the practice.  This is key if you are to prove a state’s ‘belief’, and the fact that the LoM still exists in the US’s most cherished legal document called the Constitution, then we can certainly deduct the US ‘opinio juris’.

The author made this legal argument very well. So if the US could care less about the Declaration of Paris, then why do these other countries continue to hang on to a ‘belief’ that they have to abide by this document? Especially as their navies continue to be downgraded by reduced budgets, or those navies get over extended with other commitments. And especially as piracy is attacking the very life blood of these countries or commerce. National interest should be focused on doing whatever it takes to stop this, and the LoM is just one tool to help with that endeavor.

Finally, I would like to also point out the fact that this was written by a ‘naval Surface Warfare Officer’ and  a ‘Judge Advocate student at the Naval Justice School in Newport, R.I’. That indicates to me a paper influenced by naval military history and thought, and the legalities behind implementing the LoM in modern times. It is also a paper that can show the way for how to implement the LoM to help in the war against today’s virus called piracy.  Very cool and check it out. –Matt

Structuring a Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pirates
Lieutenant Todd Emerson Hutchins
June 9, 2011
(this is just one section of the paper)
THE PRESENT STATE OF LETTERS OF MARQUE IN INTERNATIONAL LAW AND AMERICAN JURISPRUDENCE
Many contemporary international law scholars contend that the Paris Declaration “by formal accession or tacit acceptance by all the powers [has become] an established part of the general body of [customary] international law.”273 Proponents of a broad prohibition on privateering allege that customary international law has formed since the Paris Declaration. “[I]nternational custom, as evidence of a general practice accepted as law” is recognized as a source of international law under Article 38 of the International Court of Justice Statute.274 It “consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.”275 The two key elements are state practice and opinio juris.276  State practice refers to “consistent conduct,” while opinio juris means States follow the rule out of “belief” that they are legally obligated to behave in a certain manner.277 Admittedly, the distinction is frustrating “because it is difficult to determine what states believe as opposed to what they say.”278

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Sunday, July 24, 2011

Publications: Contractor Support Of USCENTCOM AOR, 3rd Quarter FY 2011

Filed under: Afghanistan,Iraq,Publications — Tags: , , , — Matt @ 12:40 AM

Contractor Support Of USCENTCOM AOR, 3rd Quarter FY 2011

Tuesday, July 12, 2011

Publications: Journal Of International Peace Operations, July-August 2011

Wednesday, July 6, 2011

Publications: Small Arms Survey 2011, Chapter 4–Private Security And Small Arms

Small Arms Survey 2011 Chapter 4: Private Security And Small Arms

Wednesday, June 29, 2011

Publications: The Frequency Of Wars, By Mark Harrison And Nikolaus Wolf

“In other words, the very things that should make politicians less likely to want war – productivity growth, democracy, and trading opportunities – have also made war cheaper. We have more wars, not because we want them, but because we can. Finally, under present international arrangements this deep seated tendency is not something that any one country is going to be able to control.”

This paper was fascinating and I highly recommend reading it.  Some of the findings will be surprising to some folks, and especially the cause of increased war. Or even ‘whom’ is the cause of increased war…

I also wanted to tie this into my Opensource Military Hardware post, because this DIY concept meshes well with the conclusions of this paper. Opensource concepts, like DIY wireless nets that the Fablab is producing, or opensource software construction, are ideas that are spreading.  It is the ability to empower individuals or communities to create the kind of product or service that they want, based upon their needs and financial standing.

To not depend upon someone else to make it for you, but to have the means to design and create it yourself is a powerful thing. It is about choice and not being dependent on someone else. You can either buy the store bought, expensive cookies, or learn how to make those same cookies with a little work and some research. Or you make those cookies, because the store no longer has those cookies.  And if you can make that cookie cheaper, and even better than the store bought cookies, all because you were well informed, like with a recipe wiki or some forum, then now you can see the power of this concept as applied to other industries.

To piggyback the conclusion of this paper, opensource will probably be the next trend that will further empower states and non-state actors to wage war. And specifically poor countries and 4th generation war practitioners. Organizations at war, no matter what their wealth and size, will always have a military industrial base.  It could be a couple of guys in a garage, welding rocket pods to jeeps, or it could be a massive industrial complex that produces stealth bombers and tanks.

I think what is interesting to ponder though, is that with today’s wars, the small scale industrial bases of today’s enemies, have certainly been able to hold their own against the west’s massive industrial bases. It is as simple as some ‘maker’, creating an EFP at the cost of ten dollars, and using that device to destroy a multi-million dollar M-1 Abrams tank.  Of course there are other examples of competing industries during times of war, and we are witnessing such things in Libya or Mexico. All of these groups are trying to figure out how to exploit the weakness of the other side’s weapons and hardware.

With more collaboration and information sharing, the learning curve for how to exploit these weaknesses increases. Opensource concepts really speed things up, and I think organizations around the world will recognize the power of such a thing. Simply because they will see how it is applied to ‘productivity growth, democracy, and trading opportunities’ and come to the conclusion that this could also be used to make war ‘cheaper’. Cheaper gives politicians a choice and the ability to say ‘we can’ go to war.

As a sidebar, it is also interesting to note that contractors are a big part of today’s war fighting, because we too give politicians the ability to say ‘we can’ go to war. That whole adage that ‘you go to war with the army you have, not the one you wish you had’, has kind of been tweaked thanks to the concept of contracting. A country can go to war with the army ‘it was willing to pay for during times of peace’, and instantly supplement that force with a highly flexible support mechanism. A support mechanism that ‘you do not have to pay for during times of peace’, and one that gets absorbed back into other industries and society when war is over. Probably the biggest advantage of this support mechanism is that it ‘chooses’ to serve and work in a war.

Politically speaking, not having to implement a draft is incredibly attractive to a country’s leaders, and further gives them the ability to say ‘we can’ go to war.  Using an army of choice, equates to organized violence that is created out of passion/desire/commitment, and not created by forced labor. Might I also add that a well compensated contractor, still must make a commitment to exposing themselves to a war. Thus this choice is as much a patriotic choice, as it is a financial one for many that go. Because if it was all about the money, then all of society would rush the door called ‘contracting’ and compete in this industry. As it stands now, there is only a select segment of society that is willing to risk life and limb in a war and service in the military or as a contractor is something they have committed too.  And personally speaking, I would much rather participate in a venture of the willing, as opposed to being a slave in an army of slaves.

Of course then we go back to the discussion of just because we can, should we?  And that is a matter for politicians and the country they have sworn to protect to get into. All I am trying to do with this post, is to ponder this study and speculate on the future of warfare. –Matt

Wars steadily increase for over a century, fed by more borders and cheaper conflict
28th June 2011
New research by the University of Warwick and Humboldt University shows that the frequency of wars between states increased steadily from 1870 to 2001 by 2% a year on average. The research argues that conflict is being fed by economic growth and the proliferation of new borders.
We may think the world enjoyed periods of relative freedom from war between the Cold War and 9/11 but the new research by Professor Mark Harrison from at the University of Warwick’s the Centre for Competitive Advantage in the Global Economy, and Professor Nikolaus Wolf from Humboldt University, shows that the number of conflicts between pairs of states rose steadily from 6 per year on average between 1870 and 1913 to 17 per year in the period of the two World Wars, 31 per year in the Cold War, and 36 per year in the 1990s.
Professor Mark Harrison from the University of Warwick said:
“The number of conflicts has been rising on a stable trend. Because of two world wars, the pattern is obviously disturbed between 1914 and 1945 but remarkably, after 1945 the frequency of wars resumed its upward course on pretty much the same path as before 1913.”

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