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<<Monopoly on violence and privatization of war and peace under a

soft rule of law >> José Antonio Sanz Moreno, Profesor Contratado Doctor, Departamento de Derecho

Constitucional, Universidad Complutense de Madrid, jasanzmo@ucm.es

SUMMARY: I. Nation-state, Private Military and Security Companies; II. From

monopoly on violence to the challenge of its legitimacy; III. Non-binging norms and

rule of law: soft regulations versus hard laws; IV. Are soft regulations enough? An

imperative “no” must be our legal answer.

I. Nation-state, Private Military and Security Companies.

The most important definitions of state have fallen out of use: its identification with

a juridical order, complete and coherent (Kelsen), its foundation as political unity,

omnipotent, unlimited and total (Schmitt), and even its description as the claim of the

monopoly of legitimate use of physical force (Weber), have left their meaningful

capacities long time ago. From the protection of national security to the administration

of justice and self-reproduction of law, the state is no longer the same ideal unity of

institutions and citizenship through norms, wills, and forces.

The final symbol of state sovereignty could be the control over the means of

coercion within a geographical space and its national jurisdiction. However, the biggest

challenges of the new millennium have defied the most perfect definition of law and

order. With the collapse of communism and the triumph of liberal-economic

globalization, the tendency through the unification and control of instruments of

legitimate use of force has changed and the world will never return to its interstate

relations of independent, equal and sovereign nation-states. The outsourcing of coercive

activities and military services and the transformations in the nature of public authority -

which once seemed to be reserved as the exclusive function of the state- could be the

big jump from the exaltation of privatization to the privatization of the own state.

However, if the concept of state wants to maintain its link with democracy and

legitimacy, the limits on government capacity to outsource old public functions by new

private companies should be answered. The concept of true legal order, as the

culmination of rationalization of rules and its enforcements, was parallel to the

monopolization of violence by the state defined as the ultimate source of legitimate use

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of physical force1. Nevertheless, from the end of Cold War the successful role of the

private actors in public security and the quick growth of all type of security companies

have challenged the meaning of states. Legitimate control of coercion requires a new

reformulation, and for this reason, we need to know the impact of Private Military and

Security Companies (PMSCs) on the globalized world of wars and peace2.

Thus, the current proliferation of privatized violence is not unusual from a historical

perspective: the professionalization of security and war seems to return to its past uses,

as the borders between public and private forces are increasingly blurred and, in many

cases, personnel and services become interchangeable3. Nevertheless, the privatization

of security and force undermines -by its very nature- conventional understandings of

state monopoly on legitimate violence and classical answers over its public use. We

already know that the privatization of warfare is not a novelty, but one thing was the old

mercenaries and other the amazing growth of PMSCs in the post-Cold World, and even

more after the post-September 11 war on terror and global terrorism4.

The path from formerly public armies and security functions to private contractors

carries many political and constitutional challenges5. Firstly, the fragmentation of

security in a multiplicity of private actors and its competition with public services could

be seen as the most important example of state weakness and the decline of its

sovereignty, even with the explosion of the populist time and its rhetorical return of

unlimited popular power6. As the fight between (economic) globalization and (national)

populism, the expansive privatization of security is the result of a new (dis)order where

the state needs to rethink its means, meanings and legitimacies. The provision of

1 “Not by coincidence, the rise of state monopoly on collective violence occurred simultaneously with the establishment of modern democracy and citizen armies” Krahmann (2010): 2. Vid, Kalberg (2005): 232. 2 “PMSCs are private business entities that provide military and/or security services, irrespective of how the describe themselves” Montreux Document, 2008, Preface. As the Montreux Document in a nutshell (3) says “There is no standard definition of what is a “military” company and what is a “security” company…They are therefore not easily categorized…For this reason, the Montreux Document avoids any strict delimitation…and uses the inclusive term…(PMSCs) to encompass all companies that provide either military or security services or both”; so, ““PMSCs” are private business entities that provide military and/or security services, irrespective of how they describe themselves. Military and security services include, in particular, armed guarding and protection of persons and objects, such as convoys, buildings and other places; maintenance and operation of weapons systems; prisoner detention; and advice to or training of local forces and security personnel” Preface, 9 guide-point to understand the Montreux Document. The use of acronym PMSCs is almost unanimous for understandable reasons: thus, the UK Green Paper, 12 February 2002 (Private Military Companies: Options for Regulation), said that “the distinction between combat and non-combat operations is often artificial”; and “at this end of the spectrum PSCs (Private Security Companies) can be difficult to distinguish from PMCs (Private Military Companies)”, 8, 9. 3 Vid., Biersteker (2013): 248; Krahmann (2010): 44; Fiala (2010): 64; Benson (2007): 451-458. 4 Vid., Laborie (2013): 11, 62; Krahmann (2009):1; Lovewine (2014). 5 “The privatization of security (military and police) has a specific constitutional dimension of two reasons: first because conducting war has traditionally been a core “public” activity, generally reserved to states, and second, because the privatization of the military and police function (within states and across borders) potentially erodes the monopoly on the legitimate use of force (both nationally and transnationally” Klabbers, Peters, Ulfstein (2009): 245. Vid., Schermres & Blokker (2011): 1222. Chesterman and Lehnardt (2007): 1; Gilbert (2003): 3-6; Gill and Cutler (2014): 5; and for the security, wars and peace beyond nation-states, Abrahamsen and Michael (2011); Hughes and Yew Meng (2011); Walzer (2004); Francis (2004); Clapham (2006), (2014); Gathii (2010); Yasuo (2012); Hough (2004); Howard (2001); Mabee (2009); Mandel (2002); Picciotto, Olonisakin, and Clarke (2010); Sharma (2011). 6 Among the academic researches on new populism, vid., Judis (2016), Müller (2016, 2017), Mudde and Rovira (2017), De la Torre (2017), Vallespín and Bascuñán (2017), Mouffe (2018), Sanz (2019).

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stability and security is just not a role of states but a complex governance of peace and

coercion from multiple actors beyond a centralized state with local and global

ramifications. When the PMSCs absorb many of protective duties of states, the

privatization of security does not only put in question the very definition of state, but it

can be in competition - rather than in concert with the state- over who has better

legitimacy to improve the protection of a specific territory and its population. The worst

problem is not only the factual rivalry over skilful personnel between public and private

actors – a new transfer market from public security and armies to private companies

with better salaries-, but its effects on state legitimacy7.

The distinction between public and private activities is more difficult to discover

when the PMSCs are involved in the most essential function of the state: the

maintenance of peace and security and, for that, the use and control of force and

violence. The outsourcing and partial privatization of many basic activities and services,

carried out traditionally by security forces or state armies, have broken the direct line

between public actions and commercial business creating unclear relationships and grey

zones. The exponential growth of PMSCs has absorbed the former mercenaries8 and

created a new type of soldier very different of citizen armies and professional forces: the

military contractor or private soldier. They are not individual mercenaries, crazy

cowboys or lonely wolves, but employees of companies who work fundamentally for

private gain without a special relation with stakeholders. The definition of PMSCs as

private entities and financial business, as opposed to individual subjects, changes its old

identification with mere mercenaries. For the personal of PMSCs and its voluntary

alliance based on profit, the tie between nationality, patriotism, and citizen duties is

broken by a deal between individual advantage and the weight of economic benefit.

In contrast to the compulsory military service made by the French Revolution and

modernity, the professionalization of armed forces and the proliferation of outsourcing

for all type of security functions in favour of private companies are the sings of the new

times. From here, the populist declarations speaking “in the name of the people” do not

change anything and even increase this private proliferation9. The PMSCs can provide

7 DCAF (2015): 15-16. “This private security boom has revived many of the long-standing debates about the utility and legitimacy of private force” Tonkin (2011): 52. “In summary, we are better organized and prepared than ever to offer our customers better security at a lower cost. A pretty attractive story to tell. Some might say that the future is full of challenge and uncertainly. But we are not afraid, simply because we are creating the future ourselves” (Göransson, President and CEO SECURITAS, Annual Reports Securitas, 2013, 6 www.securitas.com); and for private security even beyond PMSCs, vid. Bures and Carrapico (2017): 229-243. 8 Vid., Steinhoff (2011): 137-151; Taylor (2013). 9 “America First”, by President Trump, is the best example: “Decir que los responsables de los sectores de armamento y de seguridad se alegran es quedarse corto: el espectacular aumento de los gastos militares y la militarización de la seguridad interior les

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for their clients10, in war time and for unsafe places, many security services: logistics,

training, combat forces, intelligence, etc. We use the term PMSCs to speak of these

private companies whose personnel are now on a business that a short time ago was the

exclusive territory of public forces and military armies of a singular state. The activities

are very broad: from security and intelligence to combat on war zones through training

and all types of outsourced services. However, PMSCs have a similar structure as other

commercial firms. To unpack the different meanings given to key concepts, such as

private armies or only security activities, a substantial part of the doctrine prefers the

acronym PMSCs as the main term used to designate both aspects of a phenomenon

without establishing rigid separations between army forces and police actions. These

PMSCs make a lucrative activity with a clear Anglo-Saxon sound. About 70 per cent of

these companies are originally from USA and UK. But even here we can see

differences: The American companies usually have their own government and army as

better clients; meanwhile, the British firms are primarily global and independent from

their public institutions. Instead of being sustained by classical mercenaries who enjoy

an individual status, PMSCs are now corporative shapes in the same way of the rest of

commercial business in a unified economic world. Thus, the debate about the narrow

relationship between (old) mercenaries and (new) PMSCs is totally unsuitable, because

apart from the profit-orientation which is common for both, the pejorative character of

the firsts cannot be translated to the seconds when they have the same structure of the

rest of transnational corporations and play similar roles and, moreover, the majority of

their clients are state governments that declare their duties and fair legitimacy11.

Thus, the first concern of this work will be to identify whether the strength of

privatized security could mean the dilution of the common state’s assumption regarding

the monopoly over coercion. The phenomenon of privatized security must be placed in

the context of the redefinition of nation-state and constitutional democracy, and here,

we need to assess its advantages and drawbacks on its own terms. However, if the state

capacity has decreased to affront the increasing security threats, it is very likely that the

growing of PMSCs continues and, with that, the security model abandons the traditional

monopolistic state system and regresses to more pluralistic structure without clear lines

hace felices. Los vínculos entre la Casa Blanca, los mercaderes de armas y los altos mandos retirados siempre han sido muy estrechos, pero con Trump se baten todos los récords” (Tanuro, 2018: 74). 10 States, international institutions, NGOs, or even other private companies and groups, but we cannot forget that “the principal clients of PMSCs are states” Seiberth (2014): 37. 11 Laborie (2013): 66, 89-91, 116; Ortiz (2010): 6; Kinsey and Patterson (2012); Krebs (2006).

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between public and private services12. The change from national or state security to

human and plural security is our greatest challenge and we need to affront it. First of

all, we must to resolve the question about the state monopoly over violence. And the

answer is clear: a bright and useful fiction from the Eurocentric past, but now it is not so

easy to simplify the complex relationship between individual liberty and collective

order, and between the legitimate use of force and our own (private and public) security.

II. From monopoly on violence to the challenge of its legitimacy.

The outsourcing of security and military services from governments to private

companies is not only experiencing a sharp growth. What is even more startling is that

they have become global in both scope and activity13. There were many circumstances

for the growth of privatized security: new and more dangerous stateless zones,

collapsing or failed states, global terrorism, increase availability of globalized transport,

explosion of populism and national-populism around the world, transnational drug

cartels, international market of weapons, international criminality, human beings’

traffic, illegal immigration, refugees’ floods, environmental problems and global

warming, failure of wars in Iraq, Libya, Syria, new cold-war between USA/Trump,

Russia/Putin, China/Xi Jinping, etc., and, of course, the increased wave of privatization

of public services from Western democracies to the rest of the world.

However, to share responsibilities over many sectors, as postal services, tax

collection, health care, education, prisons, and so on, is not the same as when the

governments transfer their duties to keep the peace but also to engage in warfare14. It is

one thing to change the conception of state obligations and responsibilities over costs,

efficiencies and qualities, but it is quite a different matter to put in questions the very

nature of state and the legitimacy of its power as a valid way to protect the people

through an organized use of violence. The state weakness to control the means of

external warfare and domestic security could break the social pact between the

community and its institutions. The legitimacy of state power and governmental

authority would lose its link to citizenship; so, the right to rule and the duty to be ruled

would be compromised. The automatic assumption of legitimacy in favour of the state,

and its instruments of force control, is being overtaken by others forms of human

security which are not anchored in any limits to the national structure. In this new

12 Biersteker (2013): 259, Table 10.1.

13 Singer (2003): 9. Vid., Percy (2007); Carmola (2010). 14 Wulf (2005): 213. Singer (2003): 51-54; Cockayne (2009): 16-17; Buckland and Burdzy (2013): 15; Likosky (2009): 12; Tonkin (2011): 8.

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(dis)governance of actors (who), means (how) and reasons (why), the legitimate use of

violence erodes the traditional state exclusivity, while leaving unanswered two key

aspects regarding the exponential rise of PMSCs. Firstly, the increase of private security

within domestic state borders (the gap of security for the richest). Secondly, the

multiplication of private global armies at no man’s land, war zones, and weakness states

(the void of security for the poorest). Thus, under this double axis, the quantitative

development of domestic private security and transnational military armies has a

qualitative projection: the PMSCs are not only gaining in size but also in effective

legitimacy, as implicitly its soft regulations would develop.

The challenges are so deep that before we describe its consequences for domestic

and global governance, and as well the likely necessity of better regulation, we need to

analyse the most noted theory about the state15. There are two main types of coercion in

Weberian conception of the use of force: physical and psychological. The first one is in

the hands of the state; the second is held by religious or hierocratic organizations.

However, the zenith moment of the more perfect political organization in history was

when it joined physical force (form of state) through psychic coercion (secularization of

religion). The nation-state was able to do that with the dissolution of human beings (its

citizens) into the transcendental nation (the chosen people by God and its theological

vox populi, vox dei). The relationship between immanent force and transcendent

coercion was only able to join both types with the assumption that our citizenship is

totally realized when it is completely subsumed under We, the nation. When the state is

defined as a political organization with compulsory membership, but only if its

administrative staff successfully claims a monopoly over the legitimate physical

coercion - as the Weberian definition declared-, the most important aspect of this

concept is not the common understanding about the monopoly of coercion, but the

claim of legitimacy over this monopoly16.

Thus, the most basic means but neither the sole nor even the usual method of

administration of political organizations is, of course, the use of physical force

(Gewaltsamkeit). Under the Weberian idea about legitimate coercion, the threat of force

- and its actual use- is the specific method of enforcement by which the state imposes its

order, but only as a last resort when the remaining means have failed. Rulers and

administrative staff claim legitimacy within a territorial and limited area. This claim of 15 Weber (1968): 34-35, (1949); Biersteker (2013): 247. Vid., Smith (1986); Singer (2003): 170; Krahmann (2010): 21-50; Swedberg (2005): 38-39. 16 Weber (1968): 54-55, 55. Swedberg (2005): 265.

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legitimacy could be upheld through physical force. Whatever the facts adduced to be the

source of legitimacy, the definition of state is a means and not an end. The state must

always have the last instance of the use of violence - as a means of relationship of

human beings dominating human beings- even when that may vary and could be use by

other compulsory organizations. In this sense, the monopoly over the legitimate use of

physical force within a territorial jurisdiction is the mean that defined the state.

However, against other issues of legitimacy - such as charismatic and traditional- the

modern state typically was based on rational and legal domination.

The new state claimed to monopolize the use of force and all use of force was

legitimated only when the own state permitted it or was prescribed by it. With this

essential mean and its characteristic authority upon the compulsory jurisdiction over

demarcated territorial areas, the state defined its political form and organization, but it

did not specify anything about its axiological premises and teleological principles.

However, without values and ends, the democratic legitimacy would lose its own

foundation and could fall under a mere procedural shape and under the tyranny of

simple contingent majorities, as the new authoritarian populisms are building17. The

common features of domination that are exercised by the state will not only be defined

through the distinction of the political regime as a dictatorship or as a democracy: both

have similar characteristic use of force. Nonetheless, the difference is obvious. While

autocracy transforms individuals in mere subjects under the control of tyrant, the

essential values of democracy are the freedom and equality of citizens, and their

substantial participation in public affairs (intangible clause with its procedural form).

Even when the administrative staff could successfully uphold the claim to the monopoly

of legitimate use of force in the imposition of its juridical order, the real legitimacy is

only determined by a democratic genesis and through its material continuity in the

exercise of government.

The connection between the use of physical force within a given territory and the

claim of legitimacy was the best form to articulate relationships within a singular

community and its citizens. However, the legitimacy of this order - as a structure of

domination- depends more on the collective belief in the validity of its system of

coercion than on the real control over violence. Thus, the ultimate grounds of validity of

domination as power legitimacy still embedded with a sense of duty demonstrated by

the citizens toward this power. Although this last correction shows how the procedural 17 Vid., Arendt (1969): 41-44; Kinley and Murray (2012): 304; Finchelstein, (2017).

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means are linked to its axiological reasons, we need to underline that the Weberian

simplified definition of the state is the perfect expression of his thought and epoch, and

not the confirmation of one historic rule. The state’s monopoly of force - both

domestically and externally, with or without intangible values to legitimate its

construction- was a historical exception rather than a common solution in hands of

public organized violence.

The privatized security has expanded in a way that has not existed long time ago, but

in many parts of the Third World the state has never had a real organization which could

be considered as an effective monopoly on violence. In fact, this concept of state as has

always been a limited exception, i.e., a historical anomaly, but never an exportable rule

from Western states to the rest of the world18. And now, it is even being overtaken both

domestically and internationally. Thus, the redefinition of the nation-state as an effect of

the slow break down of its monopoly over force confirms a new expression of the

challenges in a plural and global world where there are no false monopolies (juridical

order, political decision and violence) and univocal legitimacies.

The problem is not really that Weber’s widely quoted definition of the state is

clearly inapplicable. Instead, the problem is that its simplistic version as mere monopoly

on force was always a fiction19. Historically the state has not had an absolute monopoly

in the legitimate production and use of violence and it could not be self-identified with

mere means without reclaiming to the values and ends of a political form legitimated by

the subjects constrained for the sake of upholding a juridical order. The assumption that

individual’s security is solely determined by the states’ control of violence has always

been an artificial conception from a Eurocentric viewpoint, but it is now also

anachronistic and naive. With the introduction of bigger and more powerful privatized

companies -both internal and external means of violence-, the traditional supposition

about a global order domain by sovereign states has lost its coercive capabilities to

unify control over a given territory. However, we do not need to create or restore the

monopoly over force, even if it is not limited to a single nation-state, but to assume that

it is impossible to maintain any monopoly of the state as the exclusive form to control

coercion. The Weberian conception regarding the legitimacy over the means of violence

seems to have been transformed into a dispersed perception of a plural use of force:

partial and limited security governance with local, state, regional, and global branches, 18 Wulf (2005): 197; Tonkin (2011): 7, 35; Barkawi (2010): 36-37; Singer (2003): 18-19, 39; Van Creveld (1999). 19 The fictions of state monopolies: in Vaihinger’s sense as the last Kelsenian Grundnorm (contradictory with reality and itself) and also in Schmitt’s version as absolute and unlimited popular power (Sanz, 2009: 184-186; 2013; 2017: 139-141).

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but without clear distinction between public and private security forces. If the

proposition is a monopoly of force beyond the nation-state which would include other

levels (local, regional and even global), it is better to abandon the reference of a

monopoly and explain clearly that we do not have any one. Instead, we have a multi-

poly of violence with different actors, diverse forces, without a unique democratic

legitimacy. When the real way is a multi-level monopoly of legitimate force, beyond

national state borders, there is not a monopoly at all20.

Taking into consideration Wulf’s vision of multi-level monopoly of force21, we can

see that the Weberian definition has lost its capacity to describe an unreal system of

isolated islands without any relationship or independents of the rest of the world. And

the new theological populism – with its “unlimited” power of the people and its

“homogeneous will”- does not change this global reality. Even maintaining the close

relationship between nation-state building and force control, a total monopoly over

legitimate violence was a pure theoretical pretension rather than a real state

effectiveness22. Of course, we already knew that the core concept on Weber’s state

definition is not referring to an absolute monopoly. It rather suggests that the claim over

this monopoly and its effective control is shared between institutions and subjects that

use physical force on a given territory. However, a big weakness of the Weberian

translation is that the meaning of legitimate is so open and unclear that it could be

considered tautological in its identification of state with force exercised by the same

state. From this point of view, the implications of the privatization of security to define

and legitimate our nation-states cannot be understated23. States – never equals,

20 Sanz (2015): 599-603, (2017): 142-143. 21 “A multi-level monopoly is, precisely speaking, an oligopoly since the powers of a monopoly need to be shared between authorities…To create a suggested multi-level public monopoly of force as an efficient and functional instrument, and avoid a ruinous zero-sum game, a set of agreed rules is a precondition… In a bottom-up approach the lowest level should be the starting point only when the local level is not capable or cannot be tasked with exercising the monopoly of force should the next level up be entrusted with this mission…Conceptually, the division of labour along the lines of subsidiarity and supremacy principles is clear. In practice, however, tension over exercising the authority is foreseeable” Wulf (2006): 99-100, and 87, 89-90; (2005): 207-208. Therefore, for us, the expression multi-level monopoly of force is not valid, because maintains the idea of a defeated monopoly. “The contemporary use of PMSCs reveals that state clients include not only those struggling with controlling their monopoly on the use of force, but particularly those in full control and stability. This approval of the use of PMSCs provides evidence that the monopoly on the use of force in its absoluteness has ceased to exist” Seiberth (2014): 271; vid., Singer (2003): 171; Bryden and Caparini (2006): 7. 22 “The question arises: can we still think about a state monopoly of violence?” Ortiz (2010): 5. And his answer: “We need to move forward from the one-dimensional perception of the monopoly of force to a model that incorporate private sector collaboration in its articulation and management” (ibid., 5-6). 23 The most famous Clausewitz’s aphorism that “War is the continuation of politik by other means” continued with the Weberian professionalization of politics, and now it can be added to the professionalization of security and warfare through its privatization, vid., Seiberth (2014): 271. The state pretension of a legitimated monopoly of violence was more a theoretical exception than a historical rule. The sovereign state and its homogeneous nation could have this pretension during a short period of time, but the fiction is over and the dawn of PMSCs is the paradigmatic example for which we need new foundations and descriptions. To implement the fiction of any monopoly blurred plural reality without any inkling of universal monopoly, except the partial control by the Security Counsel of United Nations and the prevalent position of the unique military superpower by USA. However, the United Nations system do not have a monopoly over force at the global level, and in many moments it is the expression of its lack. The case of the USA military force - which has a superabundant use of PMSCs and has even accepted that it is incapable without them- it is the best example of a clear mutation from fictional mono-poly to factual multi-poly on force. For that, the PMSCs are

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sovereigns and independents24– are no longer the exclusive actors of international order,

but their new definition will depend on how many control over the means (coercion,

procedure and its jurisdiction) and values (human-citizen rights, substantive democratic

legitimacy) which they can retain in a global international order with its own binding

rules (jus cogens)25, pluralistic law-making processes and soft regulations26.

III. Non-binging norms and rule of law: soft regulations versus hard laws.

We can say that the origin of privatized security has had a double direction: a) from

the top of state to the bottom of society, where governments outsource their internal or

international security to private providers; or b) from the bottom of citizenship to the top

of their public organizations, where citizens themselves and their different groups (or

communities) provide instruments of violence for themselves (self-defence) or through

private services (paid companies)27. The state can be the main organizer in the provision

of security and peace, almost like a fallen Leviathan needing the consent of its subjects

but without an absolute power and under a transnational security environment where

there is a multiplicity of public and private actors and companies. So, independently of

our subjective opinions about PMSCs, we cannot escape of a simple fact: “private

security in this form is available only to those who can afford it”28.

The global governance of security is already a plural and multilayered system with a

new redistribution over the use of force among public institutions, private contractors

seen as part of the US “total force” or as a “force multiplier”; “..., it has become a truism that the United States can no longer plan or execute military operations without this robust civilian augmentation” Corn (2012): 157. This “has morphed into a parasitic symbiotic relationship, where PMSCs are sustained by the military operation of war”; “Most of all, these PMSCs see their role of supporting US military activities through the prism of profit and obtaining an advantage over their competitors”; “The study results also support the opinion that US military units are no longer self-sustaining entities and must rely on the services of PMSCs authorized to deploy with the US military” Lovewine (2014): 146, 148. Bryden (2006): 3-4. 24 Vid., Krasner (1999) and his illuminating vision of “sovereignty” as “organized hypocrisy”. 25 Taken as a teleological unity arising out of democracy, the Constitution reflects certain fundamental values and principles to which the rest of provisions – even its procedural amendments- are always subordinated. Thus, the core of a constitutional democracy is not the eternal and indivisible nation as unlimited owner of power. Instead, it entails on the one hand, the freedom of citizens and peoples, and, on the other, the recognition and protection of human dignity and intangible rights under its global and material integration. Vid., Cassese (2012): 157-171; Checkel (2013): 220-241; Rosenfeld (2010). The rules of jus cogens are the peremptory law of international community and, with that, the very core of its substantial constitution accepted by the whole international community (Articles 53 and 64, 1969 Convention of the Law of Treaties, Vienna). Thus, independently of the complex delimitation of peremptory norms by different authors (prohibitions of genocide, aggression and use of force, right of peoples to self-determination, protections of human rights, etc.), these rules of global constitutionalism and their universal values are imposed over state normative, breaking its unlimited will and unfettered sovereignty. The jus cogens perspective is a global viewpoint with a clear humanitarian dimension that redefines the previous place of nation-states on the world and the delimitation of their powers even in democracies. We can discuss what the substantial foundations of international order are, but it would not be viable to return over an anachronistic procedural monism without material constitutionalism and its universal values. 26 Even with the new power of populist discourse and its unlimited sovereignty of the (pure) people against the (corrupt) elite, the state monism is an obvious fiction. So, pluralism is the only answer to understand the law in a world with multiple sources, different legal systems, and as well with its international order. In despite the populist discourse about the people with a single will on a unique and powerful state, the own idea of state as unity (monism of political decisions and self-reproduction of legal order) can be seen as an outdated image and a false description of our communities. Through the path of the law, the peoples are linked with the international system, its jus cogens and human rights guarantees. Thus, the ontological communities are not anymore omnipotent powers, alones in the world, without values and limits that can do whatever they want to do. 27 However, there are many situations that these top-down or bottom-up directions do not have so easy classification; for instance, the case of multinational corporations or transnational organizations with their own privatized security providers. 28 DCAF (2015): 16. Vid., Hoppe and Quirico (2009).

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and non-governmental actors29. Nevertheless, if we want to maintain the link between

legitimated coercion and democratic citizenship in a context where public security is no

longer an exclusive state activity, the legality of security companies and their strict

oversight should not be doubted, both domestically and internationally. Through an

unstable but more globalized world, nation-states alone cannot effectively exercise the

control of violence, but we do not have a legitimate international order to replace them

and their claim over the monopoly of force.

The PMSCs are not out of international order and their personnel and directors are

subjected to humanitarian law, but there are no explicit guidelines for their services.

However, the role of international humanitarian law (IHL) and human rights law

(HRL) over private contractors and their workforce ought to be improved. Human rights

violations committed by PMSCs and its accountability and oversight of unlawful

conducts would need an effective regulation to control abuse, unjustified violence and a

main feeling of impunity, grey zones and - for some authors- even a legal vacuum on a

global business without real access to justice for victims of illegal acts30.

We can see the combination of very different types of rules in the PMSCs’

regulation: hard laws (domestic maximum and international minimum, as binding

obligations with certain clarity regarding their interpretation and implementation by

their addressees), soft regulations (legally non-binding rules with weak control and lack

of effective jurisdiction) and voluntary measures or self-regulation (good practices or

codes of conduct by the own industry to monitor and enforce its activities, services and

personnel)31. The interaction between these complex kinds of regulations and the role of

legally non-binding agreements under the rule of law, both national and international,

are building a new reality of law-making without clear hierarchy, coherence and

completeness. Thus, the regulation of PMSCs is the best example to explain what the

path of the law and its sources can be: the privatization of human security as a real

description of the impossible certainty of law and the delusion of its juridical security.

Taken together – the lack of jurisdiction, immunity agreements, and armed

conflicts- can translate into impunity for the perpetrators of serious violations of human

right laws. Thus, the answer of PMSCs’ regulation cannot operate beyond the reach of

the rule of law, domestically and internationally speaking, because these are the two

foundations of the legitimated order: the democratic structure of power in singular 29 Cusumano (2011): 26, 36; Wulf (2008): 191-200. 30 Gómez del Prado (2011), (2012), (2013); Francioni and Ronzitti (2011): 3. 31 Vid., O’Connell (2000): 100-114.

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states and their immersion in a global regulation through the protection of humanitarian

rights as the core of its material constitution and international jus cogens.

Our first regulatory idea for a global market must be the universal order; and here the

international humanitarian law (IHL) is located in an exceptional place. It is obvious

that every person has to obey IHL in any action related to an armed conflict; and,

indeed, the PMSC employees are not any exception. War crimes must be prosecuted by

states, but precisely the Geneva Convention (1949) represents the paradigmatic example

of how difficult it is to use old interstate treaties in our blurred and populist time32. At

the same time, it is uncontroversial that individuals bear criminal responsibility for their

acts under international law. By doing so, the Rome Statute of the International

Criminal Court (ICC) stipulated the global jurisdiction to prosecute individuals for the

crime of genocide, crimes against humanity, war crime, and the crime of aggression,

without distinguishing between armed forces or private military, legal or unlawful

combatants, soldiers or civilians. Everybody can be responsible and prosecuted when he

(or she) commits a serious violation of the law. Thus, while the prosecution of PMSCs

as multinational firms for criminal participation can be impossible, the responsibility of

its employees is beyond the slightest doubt. However, the ICC has a subsidiary nature

and, according to this principle, it ought to exercise its jurisdiction when state courts are

not able to investigate and prosecute such types of crimes; but even if extraterritorial

jurisdiction formally exists, the system has important difficulties. The ICC could

prosecute the personnel of PMSCs, but only under very limited conditions – for gravest

breaches which have sufficient severity under international criminal responsibility33.

Therefore, in order to resolve problematic limitations of international law and to

increase their legitimacy under the rule of law, PMSCs themselves have improved their

voluntary regulations34. The self-regulation, commonly called “Code of Conduct”,

32 Vid. Sivakumaran (2014): 479-495. In particular, the dichotomy between civilians and combatants in armed conflicts was the path to humanize the total war, but what is the PMSC employees’ status: civilians, combatants, or some kind of mutants? The Convention was mainly conceived against state violations and, for this reason, its application to PMSCs is very limited and problematic. IHL is the specific regulation at war times against barbarism: it applies to all individuals within the territory of an armed conflict, and it differentiates international from non-international armed conflicts. Thus, PMSCs must observe its prescriptions, but we cannot assure what they are if the line between civilians and combatants is very narrow and, in many cases, even inoperative for their employees. For many academics, the majority of PMSC personnel have the status of civilians even when they accompany the armed forces, so they may not directly participate in acts of war. In most cases, armed PMSC employees must be considered civilians and they would enjoy the protection granted under the Geneva Convention, especially against any attack unless they participated directly in hostilities. Vid., Cameron and Chetail (2013): 429-538; Schaller (2007): 345-360; Laborie (2013): 166-167, 170; Seiberth (2014): 106-120; Corn (2012): 158-163; DCAF (2014): 37. 33 Article 5 ICC. The different jurisdictions among states parties, states signed but not ratified, and states neither signed or acceded, would define a system without legal obligations for many countries - including USA, their nationals and PMSCs, Laborie (2013): 172-173. Vid., Cameron and Chetail (2013): 597. 34 After grave misconducts by some companies – as the Blackwater shooting case in Nisoor Square or the mistreatment of detainees in Abu Ghraib- received extensive media coverage and were clearly rejected by the global public opinion, the security industry sought to clean its name and gain better reputation by shaping its services under the rule of law.

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depends entirely on private will and represents a major effort to make military and

security forces a much more legitimated business35. However, it is not enough to think

in a main self-regulation when PMSCs are so plural and even distant on principles,

tactics and uses of means of coercion. Self-regulatory initiatives and codes of good

practices by the industry can be positive, but could they be a global solution and

replace public regulations and international law applicable to PMSCs? The majority

answer from academics is a resounding no36. The self-regulation codes are only a partial

and voluntary complement of high regulation (state model) and basic level

(international system) as a double source of public legitimacy for a juridical order

through hard regulations: democratic states and their insertion in a universal

community of material law and protection of human beings37.

However, we cannot forget a dark side: The hidden reason for the weakness of

regulation is the unwillingness of state governments to clear up the grey-zones of an

industry that is useful to dissolving the public’s accountabilities38. That is why the

control over the actions of private forces is not the same as a strong mechanism of

accountability with “checks and balances” for the actions of public armies, regulated at

an internal and international level. But we cannot overlook the weight of their activities,

as it is already so influential that even the strongest public forces – such as the US

army- depend profusely on them. The constant presence of privatized security with

public forces on armed conflicts – even with more personnel than classic armies in the

most dangerous zones- is the clearest example that the UN system needs to regulate

these new lords of violence, but the international model has shown its inability to

improve a binding private security’s convention39. Through the UN Working Group on

the Use of Mercenaries40, the United Nations system has sought a possible consensus

35 These codes of conduct can have different forms such as a particular document for a single company – as Securitas’ Values and Ethics Code-, communitarian codes for a federation of security enterprises, as charter of the associations, or diverse ways to monitor its compliance through variable supervisory mechanisms which have expulsion as the ultimate and strictest sanction 36 For instance, Mathieu and Dearben (2006): 2, Clapham (2006): 303; Conzelmann and Wolf (2008): 113; Cusumano (2011): 24. 37 The main regulation has to be global (minimum) with domestic implementation (maximum). “It is clear that for successful regulation of PMSCs, as with any other attempt to regulate non-state actors, there needs to be a synthesis between international standard setting, supervision and accountability, and robust national systems of licensing and regulation” White (2012): 18. 38 Vid., Mathieu and Dearben (2006): 19. “All in all, the UN requires states to solve their disputes peacefully, prohibits the threat as well as the use of force between states and, with the exception of intervention on request and the right to self-defence, gives a monopoly to the Security Council in legitimizing the use of force” Rittberger, Zangl, and Kruck (2012): 145. 39 The UN Charter requires that “(T)he General Assembly shall initiate studies and make recommendations…encouraging the progressive development of international law and its codification” (Article 13.1). Indeed, at the 15th session (2010), its Human Right Council adopted the resolution 15/26 by which decided “to establish an open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies”. Nevertheless, this resolution was approved with votes against by Western states. 40 From the beginning, “the efforts of the UN Human Rights Council’s Working Group of Mercenaries remain hamstrung by baseline unwillingness of PMSCs and exporting states to see PMSCs likened to mercenaries, and treated as an inherent threat to human rights” Cockayne (2009): 9.

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for a binding international treaty for PMSCs and even presented a Draft Convention41.

In link with the classical definition of state monopoly on violence, this Draft declared

that there are public functions that ought not to be outsourced to non-state actors, but

part of the international community – especially, pro-privatization Western countries

(USA, UK, etc.)- was not prepared to adopt strong binding law. As a result, the line

between core public functions and private services is darker than ever; and the populist

time, the rise of authoritarian regimes, the hot (civil) wars around the world, the new

cold (international) wars, and the fights between USA, China, Russia, etc., are not the

best moment to seek multilateral regulations, but more instability and selfish interests42.

That is why it is impossible to approve – in short or medium term- a main convention

over PMSCs without the support of Western states; or, even worse, its effectiveness

would be virtually void.

IV. Are soft regulations enough? An imperative “no” must be our legal answer.

As we are seeing, the outsourcing of coercive activities and military services is the

perfect example to describe the new times with its complex combination between hard

law and soft rules. The hybrid nature of regulations and the plural character of norms

(domestic and international, binding rules and non-binding prescriptions, etc.) configure

a complicated model to confront unlawful activities and grave violations of human

rights under the privatization of security. However, on the amazing growth of PMSCs,

the new informality through soft regulations (self-rules, recommendations, good

practices and codes of conduct) can never replace the effectiveness and direct

applicability of hard public laws with mandatory jurisdiction. Thus, our real dilemma is

not only to improve the regulation for PMSC services, but to resolve the future of

nation-states and to fight against the enemies of our democracies.

PMSCs are a transnational reality ruled by international law, but this realistic

viewpoint does not say anything about their legitimacy or not, and many over the new

slimming diet on states’ definition in a global market with many non-binding rules

under weak traditional regulations. The dark zones of PMSC activities are not a legal

vacuum, but the open-endedness of hard regulations without exclusive monopolies and

41 Draft of a possible Convention on Private Military and Security Companies for consideration and action by the Human Rights Council, A/HRC/15/25 (2010); see it in Marini (2012): 154-175. 42 Laborie (2013): 181-182. Under public international law and respecting the limits on the right to resort to private companies - for Cameron and Chetail (2013): 133- “there is no overarching rule, explicit or implicit, that prohibit recourse to PMSCs as a whole and in general, but that there are important limitations. First, states may not outsource the capacity to determine whether force may be used against another state. Secondly, when PMSCs are used in situations of armed conflict (including in peace support operations), states must be careful not to give them roles that IHL prescribes only for members of state armed forces, whether explicitly or impliedly”. Vid., Campbell (2012): 3-17; Frulli (2011): 448-469.

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fulfilling jurisdictions; and, as global services and transnational industry, the gaps of

international regulation have been resolved with a soft self-regulation that - at the same

time- would need international control (minimal humanitarian guarantees) and state

implementation (harder order). However, the proliferation of private contractors can

break the nexus between public authorities and individual citizenship; and if the grey

zones of weak regulations are consolidated, a discredit and delegitimize democracy will

not support the weight of the rule of law and its constraints. So, the polarization over

what functions is intrinsically public and what others could be contracted with PMSCs

cannot remain unsettled if the state would like to safeguard not only law and order but

the feeling of building a legitimate system – nevermore the only one- for its citizens;

and here, the role of state and its immersion under universal rights guarantees can be

safeguarded. The hybrid nature of regulations and the plural character of norms,

domestic and international, binding rules and non-binding prescriptions, and so on,

present a complicated model to confront unlawful activities and grave violations of

human rights under the security outsourcing43. Even with positive views over their

benefits as normalization, accountability and oversight of an always problematic

market, this complex informality of soft regulations – including self-rules and

recommendations of good practices- can never replace the effectiveness and direct

applicability of hard public laws with mandatory jurisdiction44.

We already know that the attempt to outlaw the use of mercenaries through both

domestic regulations and international conventions is part of the past, and now Western

states are not only tolerating, but actually promoting the astonishing reliance on PMSCs

to reduce their force services and military armies and increasingly outsource activities

of security45. The interaction between biding and non-biding norms and the evolution of

their relationships will need a plural method of legal interpretation and implementation

to classical rules (the wording of the norms, the systematic, sociological and

teleological meanings, as well as comparative approaches), but also more open criteria

under the present context, forgetting rigid translations from old definitions of

mercenaries in international law to the new PMSCs personal and services. Here, the

Montreux Document on Pertinent International Obligations and Good Practices for

43 Thus, in the context of transition to a new constitutionalism under the global - but plural- order of rule of law, its development blending “many political-legal elements and regulatory mechanisms, encompassing hard and soft law that have developed unevenly across space and time”; this global constitutionalism can be seen as the combination of different processes within a “new informality” involving proliferation of soft, self-regulatory and “flexible” or “double” legal standards” Gill and Cutler (2014): 6-7. 44 Seiberth (2014): 229, 237; Chesterman and Fisher (2009); Quirico (2012). 45 Krahmann (2009): 9-27; Lovewine (2014): 149.

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States related to Operations of Private Military and Security Companies during Armed

Conflict (2008, MD)46 and its International Code of Conduct for Private Security

Service Providers” (2010, ICoC) are the best expressions of a warfare and peace

without clear lines between public and private, civil defence and military service,

business profits and control of violence, etc. These documents could be seen as the

international confirmation on the loss of the traditional theological sovereignty ascribed

to nation-states and its unlimited will by new forms of legitimacy at a global scale with

universal human rights as the intangible limit for all authority. The MD showed how the

state functions in the difficult field of PMSCs’ regulation and its ICoC was a non-

binding tool to implement the responsibility and self-control of private contractors

under international law, but now it is time to go further away47.

The self-regulation and “good practice” codices are perfect examples of how

transnational businesses seek better recognition under the market momentum in this

populist era. The voluntary code models – as self-interested regulations- are currently

very useful providing the necessary statement of international obligations, but they can

never be the replacement rules of public law to fill its gaps, and less the effective

standards to implement judicial sanctions for unlawful conducts48. Nevertheless, the

MD is the biggest proof that governmental authority could be exercised by PMSCs and,

for that reason, the implicit understanding that a new order without rigid borders

between public and private services on security and military forces49. Even when the

MD could be read aseptically without a close answer about the legitimacy of PMSCs,

this Document and its Code have practical effects: the activities of privatized security

services are being described as a novel reality with international obligations, very

distant from the old mercenaries. Thus, the apparent neutrality of the MD and the ICoC

46 Vid., Beerli (2013). “The Montreux Document is the first document of international significance that reaffirms existing obligations of States under International Law, in particular International Humanitarian Law (IHL) and Human Rights Law relating to the activities of Private Military and Security Companies (PMSCs) during armed conflict. It does not create new legal obligations, but contributes to the protection of civilians in armed conflict by recalling and compiling applicable international obligations while also listing good practices related to operations of PMSCs in armed conflict”; “It clarifies the misconception that PMSCs operate in a legal vacuum by recalling and compiling applicable international obligations while also listing good practices to assist States in implementing these obligations”; “The Montreux Document is currently supported by 54 Participating States from all regions and 3 intergovernmental organizations: the European Union, NATO and the Organization of Security and Co-operation in Europe (OSCE)” THE MONTREUX DOCUMENT ON PRIVATE MILITARY AND SECURITY COMPANIES: 10 YEARS ON, 10 October 2018, http://www.un.org/en/ga/sixth/73/pdfs/10_october_2018_concept_note.pdf 47 Cockayne (2009): 1, Laborie (2013): 217, Seiberth (2014): 5-7. 48 The Draft of a possible Convention on Private Military and Security Companies (2010) affirmed that “The Parties to the present Convention ...Taking into account the adoption of codes of conduct, but considering that self-regulation of private military and security companies is not sufficient to ensure the observance of international humanitarian law and human rights law by the personnel of these companies”. 49 “States that contract PMSCs can, under certain conditions, be held accountable for violations committed by PMSC employees, in particular if the PMSC exercises elements of governmental authority…In such cases, the same rules apply to the State…as if it had acted itself through its own military forces” (The Montreux Document in a nutshell, 4). So, even in most cases an armed PMSC employee enjoys the protection all civilians are granted under the Geneva Conventions, there are cases, for instance when they are incorporated into the armed forces of a State, where the PMSC personal would lose this consideration.

17

– because they do not reject or welcome explicitly the use of PMSC50- is the true

finding of the end of public monopoly over violence51.

The attempt to outlaw the use of mercenaries through both domestic regulations and

international conventions is part of the past, and now Western states are not only

tolerating, but actually promoting the astonishing reliance on PMSCs to reduce their

force services and military armies and increasingly outsource activities of security52. For

all these reasons, we can present three very different alternatives for the next future53:

A) Absolute banning of PMSCs or certain types of their activities. The prohibition of

private contractors would be the most radical option, but the least realistic approaches;

and, as Wulf said, “an impracticable solution”54. Moreover, even the ban of mercenaries

was very limited and, now, the PMSCs are not the same as the old mercenaries. Instead,

private forces and non-governmental actors offer their services mainly to public

institutions. However, the ban of certain types of activities by PMSCs would have an

important international consensus, namely, in the use of PMSCs as direct army forces in

active combat. But to include this ban in a conventional multilateral pact is unlikely.

B) The regulation of its use by three ways: B.1) through a traditional treaty and its

interpretation and implementation on national legislation (in particular by negotiating a

UN convention, which would be very useful but unsuccessful if it did not have enough

support by Western states or even the clear opposition by some of them); B.2) through

soft-law instruments with their benefits and limitations, i.e., enlarging the number of

signatory states to the Montreux Document or developing a new and more

comprehensive guideline (easier agreements by state and non-state actors in faster and

more informal making-process but always non-binding rules)55; and B.3) under

domestic law enactments for the purpose of enhancing and refining their own regulatory

frameworks. A legal system to effectively monitor compliance can have different shapes

in the interaction between hard and soft rules, but the actual body of international

regulation does not provide the effective jurisdiction for PMSCs accountability. 50 The MD “does not take a stance on the question of PMSC legitimacy. It does not encourage the use of PMSCs nor does it constitute a bar for States who want to outlaw PMSCs” (The Montreux Document in a nutshell, 5). 51 “The Montreux Document and the ICoC are situated within a wider context on non-binding norms attempting to regulate business and human rights” Seiberth (2014): 10. 52 Krahmann (2009): 9-27; Lovewine (2014): 149. 53 Cameron and Chetail (2013): 676-677; Sanz (2017): 164, note 31. 54 Wulf (2005): 199, distinguished these three different approaches “to deal with the increasing but unregulated practices of private military companies: prohibition, reliance on self-regulation of companies and national and international legally binding regulations”. 55 “Although discussions on the possibility of a convention continue, they are unlikely to lead to a concrete outcome in the near future. (…). In light of US opposition to a new Convention, some have concluded that the initiative is not even worth pursuing. The strategy of the private military and security industry and the states that support it is clear: on the one hand, they demonstrate willingness to cooperate by participating in non-binding dialogues and multi-stakeholder initiatives; on the other, they block attempts at more binding arrangements. In this context, NGO’ strategic decision to engage with multi-stakeholder initiatives is particular problematic, since it can serve to legitimize this approach” Pingeot (2014): 18.

18

C) To remain inactive and, therefore, maintaining the status quo. And even in this case,

we need to know that PMSC activities are under the rule of law, both in the

international system and within the state jurisdiction. However, considering the

ambiguity and confusion in rules created for other historical situations, the real

commitment to PMSCs is far from being effective.

The legal grey zones of PMSC activities are obviously not in a legal vacuum56, but

are rather situated in an open-endedness relationship between hard regulation both in

domestic and international orders which do not have exclusive monopolies and fulfilling

jurisdictions. As global services and transnational industry, the gaps of international

regulation have been resolved with a soft self-regulation that, at the same time, would

need a state implementation (harder order) and international control (minimal

humanitarian guaranties), over its double essential legitimacy (democratic state power

and substantial human rights as global intangible constitutionalism). Soft norms and

self-regulation can only fill the gaps for a very little time, but they will always need

hard law implementation57.

The limits of state outsourcing continue to be the focus of our debate on the

relationship between governmental functions and private force services58. Here, the

difference between the Draft Convention on the use of PMSCs and the Montreux

Document is the highlight of this debate. On the one hand, the Draft Convention (and its

strong monopoly of force emanating from the state) shows many functions that are

inherently governmental (Art. 2) and prevents their privatization. On the other hand, the

MD does not define the substantial core of state functions and, therefore, it is less rigid

about what activities can be outsourced, leaving the option of privatization and the

decision of outsourcing security services (or not) to the public authorities59.

However, the debate over what functions are intrinsically public and what others

could be contracted with PMSCs cannot remain unsettled if the state would like to

safeguard not only law and order but the feeling of building a legitimate system 56 As said Gillard, even if persecutions are rare and with the limitations of IHL, “a binding legal framework that regulates the operations of PMC/PSC staff in situations of armed conflict does exist”; however, we do not agree with her conclusion: “There is therefore no need to develop new rules at the International level” (2006): 570. 57 “Self-regulatory initiatives by companies and industry associations are positive, but they are not sufficient since neither the problematic cases in the grey zone between legal and illegal activities nor clearly illegal excesses can be prevented or prosecuted. The advantage of the self-regulation mechanism is its easy implementation, but it remains a soft regulation” Wulf (2005): 199; “…a process of internalisation gradually transforming the Code (ICoC) from a self-regulatory instrument to a more normative expression of PMSC industry standards that are not only followed voluntarily but out of a sense of legal obligation” Seiberth (2014): 12. 58 “the debate over what functions are off-limits to PMSCs” Lovewine (2014): 149; “reevaluating which functions can appropriately be outsourced, and which are inherently governmental” Nevers (2012): 75. 59 “In doing so, the Document does not reflect the minimal consensus that according to current state practice PMSCs are not used for active combat. Furthermore, there is a fundamental incompatibility with the UN Draft Convention explicitly prohibiting active combat and other functions considered to be inherently governmental. The dissonance between the two instruments mirrors the divided views among the international community” Seiberth (2014): 156-157.

19

(nevermore, the only one) for its citizens. Nonetheless, as the Weberian doctrine would

seem to show, the core of a social community called “state” is more than its claim over

legitimacy on violence: the valid core is not only the compulsory jurisdiction to

maintain order, but also the shared values of democratic citizenship. For this reason, the

role of state and its immersion under universal rights protection cannot be outsourced.

There will always be a fundamental tension between legality (old and new, hard and

soft, international, national or local, etc.) and legitimacy (democratic system based on

better participation of citizens over public affairs and improved by substantial human

rights and protection of minorities), and nowadays, the lawfulness of PMSCs - as global

standards with domestic implementation- is a state priority to maintain its legal system

and political order. The proliferation of private contractors over collective security can

break the nexus between public authorities and individual citizenship; and if the grey-

zones of weak regulations are consolidated, a discredited and delegitimized democracy

will not support the weight of the rule of law and its constraints. In short, the legitimacy

of PMSC services should be the fundamental question to resolve by a new order

(international law and its state development) that really wants to affront the bankrupt of

the three most fundamental monopolies under the nation-state: the juridical order, as

self-defined, coherent and total monism (the pure Kelsen); the political system, as unity

of unlimited popular will (the return of Schmitt as new populist); and the use and abuse

over violence and its exclusive territorial jurisdiction (a formal Weber), always a

Eurocentric fiction, but today a poor description of the global market of coercion. In this

time of populism and privatization of security, the fights between national sovereignty –

as unlimited power- and constitutional democracy – as popular rule, but also control of

power and guarantees of human dignity and her/his rights- are again over the table. And

here, even with a harder regulation of PMSC activities, our answer cannot be

equidistant: if the populism as unlimited power win the battle and its leaders the war,

the days of democracy are over.

In this climate of uncertainty, even for the own survival of constitutional

democracy60, Arendt’s conclusion might offer the sound reflection on these issues: “We

became aware of the existence of a right to have rights…, because there was no longer

any “uncivilized” spot on earth, because whether we like it or not we have really started

to live in One World” (1951: 294). Regardless of who is in control over use of violence

60 As we have understood it: the better, but imperfect, collective system as symbiosis between rule of people and law, and protection of freedoms and human rights.

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– whether it is the public authority or some private companies-, the only way to

safeguard the collective security in this One World is through substantive democracies

under a global protection of human rights and with a more imperative jus cogens. From

here, our duties as jurists are clears. We cannot wait to see the corpse of constitutional

democracy pass next to us after its murder, but to protect and improve its rule of law:

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