Legal Control of the Private Military Corporation Belling the Cheshire Cat

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ISBN: 9780230522312 | 0230522319
Cover: Hardcover
Copyright: 1/15/2009

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Private Military Firms, (PMFs) , are the wave of the future. They challenge most of our assumptions about private parties inflicting military scale violence on societies. This book examines the phenomena of the PMF from a legal-political perspective, drawing on the best of legal theory, actual legal precedents, and real cases of PMF interventions. It provides an in depth examination of the PMF as a corporate actor in the international, domestic arenas, and various efforts to control it.

Preface	p. xi
Acknowledgments	p. xii
Introduction	p. 1
The problem: A transformation in sovereignty	p. 1
Aims and rationale	p. 5
Book synopsis	p. 8
Private Military Companies: The New Face of War	p. 11
Introduction	p. 11
Post-Cold War: The entrenchment of the contemporary PMC	p. 13
Classification of PMCs	p. 15
PMC centralization in national military operations	p. 26
PMCs and mercenaries: Tailored from the same cloth?	p. 28
Conclusion	p. 31
The Corporate Form and the Private Military Corporation	p. 33
Introduction	p. 33
The corporate form as the distinctive difference between individual mercenaries and private armies	p. 35
The corporation: History, theory, and the PMC	p. 37
Concession theory of the corporation	p. 39
Contractual theory of the corporation	p. 40
Implications of corporate theory for the PMC	p. 41
Corporation laws and the PMC	p. 43
Directors' duties and rights	p. 43
Shareholders' duties and rights	p. 44
Separate entity doctrine and the corporate veil	p. 45
Liability issues for deaths specific to the PMC	p. 47
The PMC and the contract to kill	p. 51
Corporate regulation	p. 52
The politics of corporate law regulation and the PMC	p. 55
Corporate governance and the PMC	p. 57
Should there be distinctive remedies available against corporate bodies engaged in PMC activities?	p. 61
Regulatory recommendations	p. 63
Conclusion	p. 65
The State, Control of Violence, and the Private Military Corporation	p. 66
Introduction	p. 66
The nation-state	p. 66
The nation-state and the monopoly of violence	p. 68
Nation-state and de facto control of armed groups and armaments	p. 69
Nation-state and de jure control of armed groups, weapons industries, and violence	p. 71
Privatization: A historical and policy perspective	p. 73
Privatization of defense services: Historical trajectories and market drivers	p. 74
Control and accountability of privatized defense forces	p. 76
Control of the corporation as creature of the state	p. 80
De jure control of the PMC-Law of contract	p. 81
De facto control of the PMC-Materiel and services	p. 84
Legal myths about control of the state's use of the monopoly of violence	p. 85
Understanding the Rule of Law	p. 86
Legal challenges to government action	p. 86
Judicial review, justiciability, and political questions	p. 87
Rule of Law and constitutional limitations on the use of violence: Militaries and PMCs	p. 87
Conclusion concerning the Rule of Law and restraint on government's resort to violence	p. 90
The PMC challenge to monopoly of violence-based sovereignty	p. 90
Domestic PMCs and internatioal influence-Lobby and geopolitical outcomes	p. 93
PMC as foreign policy tool: Five case studies	p. 96
Iraq: Supplementing unilateral action	p. 98
Sudan: Avoiding public scrutiny	p. 100
East Timor: Honoring international commitments	p. 102
Equatorial Guinea: Advancing domestic values on the international stage	p. 104
The Balkans: Achieving conflicting objectives by sleight of hand	p. 105
Regulatory recommendations	p. 107
Conclusion	p. 108
National Regulation of Private Military Companies	p. 110
Introduction	p. 110
Regulation and regulatory design	p. 110
Is self-regulation of the PMC industry feasible?	p. 112
The International Peace Operations Association	p. 114
Voluntary Principles on Security and Human Rights	p. 116
Can self-regulation work?	p. 118
The case in favor of regulation	p. 119
Papua New Guinea: The Sandline Affair	p. 121
Iraq: CACI and Titan	p. 123
Can state regulation be effective	p. 124
New Zealand: National regulation consistent with International Treaty	p. 127
United States: Registration and licensing	p. 130
Proposals to create a Civilian Reserve Corps	p. 131
South Africa: Prohibition, registration and executive authorization	p. 132
Regulation of Foreign Military Assistance Act 1998	p. 133
Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Bill	p. 134
United Kingdom: "Light footprint" regulation, if any	p. 137
Regulatory recommendations	p. 138
Conclusion	p. 140
Private Military Firms under International Law	p. 143
Introduction	p. 143
PMCs and the mercenary regime: Peeling a legal onion	p. 144
General Assembly resolutions	p. 144
Problems with General Assembly resolutions	p. 147
Specialized mercenary conventions	p. 147
Regional instruments	p. 147
International instruments	p. 149
The Law of Armed Conflict	p. 152
Hague Conventions	p. 152
Additional Protocol I	p. 153
State responsibility: Snaring governmental and PMC duplicity	p. 157
State and nonstate actors	p. 158
Private persons acting under direction/control of state-"quasi-state actors"	p. 160
PMCs and command responsibility: A new avenue for an established doctrine	p. 162
Embedding command responsibility in international law	p. 163
A new calculus: Should command responsibility embrace civilians?	p. 165
Abu Ghraib: State and command responsibility: Belling the corporate "devil"	p. 166
Corporate actors in the chain of command	p. 167
Regulatory recommendations	p. 170
Conclusion	p. 171
Conclusion: Taming the Wild Dogs	p. 173
Notes	p. 177
Bibliography	p. 222
Index	p. 240
Table of Contents provided by Ingram. All Rights Reserved.

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Legal Control of the Private Military Corporation Belling the Cheshire Cat

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