Edited by Stephen Tully
Chapter 94: UN: International Convention against the Recruitment, Use, Financing and Training of Mercenaries, 1989
Commentary: The legal concepts of ‘armed attack’ and ‘self-defence’ apply to nonState actors: ICJ, Case concerning Military Activities in and Against Nicaragua (1986) ICJ Rep 14: paragraph 195; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004): paragraph 139 & Declaration of Judge Buergenthal, paragraph 6; Security Council Resolution 1368 (2001). In particular, mercenaries threaten the political independence and territorial integrity of States. Their military efficiency may derive from failure to observe the laws and customs of warfare and human rights obligations such as the right of self-determination: UNHRC (1999), ‘Report made pursuant to Commission Resolution 1998/6’, UN Doc E/CN.4/1999/11: paragraph 75. The Convention extracted below (29 ILM 91, not yet in force) prohibits resort to their use. See further, Organisation of African Unity (OAU) (1972), Convention for the Elimination of Mercenarism in Africa, OAU Doc CM/433/RevL Annex 1 (entry into force 1985). However, neither international law nor public policy precludes contractual enforcement simply by virtue of the subject matter: In the Matter of an International Arbitration under the UNCITRAL Rules between Sandline International Inc and the Independent State of Papua New Guinea (2000) 117 ILR 551: para 11.1. The nature of mercenary activity has also evolved: see Zarate J.C. (1998), ‘The emergence of a new dog of war: private international security companies, international law and the new world disorder’, Stanford Journal of International Law, 34, 75–162. Private military companies (PMCs) have governments, international organisations and corporations as clients: UNHRC (1998), ‘Report on the question...
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