Constitutions are continuous outcomes of power relations. The primary function of any constitution is to manage power, a critical feature of which is the prevention of destructive conflict. Warfare—including its facilitation by failure to pursue diplomatic avenues in some circumstances, and its promotion through the development of technological horrors such as nuclear weapons, mini-nukes, and other weapons of mass destruction—is the foremost challenge to the viability of an international constitutional system. The collapse of the League of Nations provided the world with a stark lesson in how aggression and warfare can undo a weak international constitutional regime dedicated to peace and security. Following World War II, the United Nations Charter established a new international constitutional system designed to more effectively facilitate cooperation among the major global powers to maintain peace and security. The proliferation of nuclear weapons constrained the Charter as superpowers jockeyed for positions of direct and indirect security influence. Warfare assumed new ideological perspectives, which were tied to claims for decolonization, self-determination, and independence. The Cold War introduced a volatile world order in which high intensity internal and ideological conflicts were fought by surrogates backed by hegemons. The retreat of state absolutism has made room for the growth of civil society, now a central element of the emerging international constitutional order, and the effect on the constitutive process has been both positive and negative. It is generally well accepted that the all powerful state, which lacks checks and balances, transparency, responsibility, and accountability, is a dangerous and destructive political artifact. However, shifting power to civil society may not ameliorate the power problem. Civil society is a nascent form of global democratization. Segments of civil society adhere to particular ideological constructs, which can either improve or worsen world order. These constructs are typically shaped by influential ideologies that object to the way in which states traditionally enjoy sovereign power, despite, as some argue, the lethal and sometimes economically inefficient ways this power is exercised. Despite these inefficiencies, a dangerous ideology has taken root in the years since the end of the Cold War. Hailed as a “solution” to the problem of state power, the development of private power, particularly in the context of supporting and supplementing military combat, may instead prove to be harmful to the international constitutive process. Privatization of military combat functions is not a novel phenomenon. Some aspects of this form of privatization have indeed been fairly comprehensively analyzed, resulting in many commentaries on the lack of accountability and near absence of regulation of private military and security services, general admonitions against allowing questionably principled private actors driven by profit to capitalize on this regulatory lacuna, and criticisms of the various bloody combat errors committed by Private Military Contractors (PMCs) and Private Security Contractors (PSCs), which, in many cases, have been tantamount to slaughtering innocent bystanders in conflict zones. These commentators and policy makers typically harmonize on the need to enhance regulatory safeguards and overall accountability, as well as to reform the rules governing contractual arrangements between government authorities and PMCs or PSCs. Indeed, it might be argued that the debate surrounding the concept of privatized combat is characterized by an intellectual, scholastic staleness. However, we submit that there are as yet unexamined dangers posed by the military-private industry dyad, and we advocate a total reconsideration of the fundamental realities of the world order implications of PMCs and PSCs in the context of combat functions. Assaying these as yet unexamined global implications of the problem of power as it pertains to PMCs and PSCs presents an uneasy point of analytical departure; such an explorative effort traditionally requires authors to offer some definition of the subject matter in the context of international law and international relations. It further assumes that we can, to some degree, understand and measure these implications.
Winston P. Nagan & Craig Hammer,
The Rise of Outsourcing in Modern Warfare: Sovereign Power, Private Military Actors, and the Constitutive Process,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol60/iss2/10