Metal Gear Solid V: The Phantom Pain is seemingly the end of one of the greatest video game franchises ever created. In it, you get to control legendary soldier Big Boss as he tries to create his dream of Mother Base, a place where soldiers don’t fight for a country or an ideology, but for themselves. This army of freedom is a constant goal of Big Boss’ throughout the Metal Gear Solid series. This week I will look into whether it is possible for us to legally accomplish Big Boss’ goal. This is not legal advice and you should not act on anything written in this post.
First off we have to examine the way the law has changed since the time the game is set. Big Boss comes out of his coma in 1984 and starts rebuilding his army. He does this by taking on mercenary work to gather funds to build his goal. He also finds diamonds while exploring (who doesn’t?) and uses those for more money. In 1989 the United Nations (UN) created the United Nations Mercenary Convention (formerly a much longer name) which enacted in 2001. The UN later stated that Private Military Companies (PMCs) are mercenaries if they do military duties. The United Nations Mercenary Convention states that countries cannot train, recruit, finance, or use mercenaries. This puts a pretty big hurdle in the path of someone trying to recreate Big Boss’ steps. This was not around in 1984 and Big Boss didn’t have to worry about it. Luckily for you Dear Reader, the United States has not signed on to this convention along with countries like France, the United Kingdom, and Russia. Also, the United States has disagreed with the UN as to whether PMCs are actually mercenaries. With the United States and several other countries ignoring this UN convention it is still possible to sell mercenary work to first world countries that can pay top dollar.
PMCs already exist in America. Academi (formerly named Blackwater), DynCorp, Triple Canopy Inc., and Vinnell Corporation are just some of the PMCs headquartered in Virginia alone. These companies work with governments, multinational corporations, and non-governmental organizations to provide additional forces in war zones, protect important persons or areas, provide tactical training, etc. This is the kind of work that would come naturally to a group of soldiers. This is all legal as well. There has not been a major case yet that has talked about PMCs being used as mercenaries in an international incident. It looks like you should be able to start funding your mission with mercenary work.
The next step in Big Boss’ plan is to actually establish his nation of soldiers. In Metal Gear Solid V: The Phantom Pain, Big Boss is building Mother Base to house his company. Similarly, this new nation should probably be built in an ocean. Several micronations have been formed inside existing countries but they have always seemed fanciful and harmless. Accomplishing Big Boss’ dream of creating a free country of soldiers is a lot less harmless. It is very unlikely that a country will allow someone to take some of their land and create a new nation inside of it when there is a threat of aggression from that new country. Don’t get me wrong, it is doable, but in this case it seems that creating an artificial island would be less work. This means that you will have to go outside of the established exclusive economic zones of each country that already exists and start building in an ocean.
The Montevideo Convention will be the next source of law that matters. It created the declarative theory of statehood. You have to find a way to get your nation (1) a permanent population, (2) a defined territory, (3) a government, (4) and the ability to enter into relations with other states. You do not need to be recognized by any state, but that would further your claims of legitimacy. You already have your soldiers and your man made island, so you just need to whip up a constitution to establish a government and then figure out how to communicate with other countries. This should, in theory, give you the ability to tell people you run a nation. On the other hand, many countries still believe in the constitutive theory of statehood which requires that you are recognized by legitimate nations before you are actually given statehood. This takes more work, but will also give you a lot firmer ground to stand on when you tell your friends at a party that you run a country of soldiers that fight for their ideals and you started all of it by contracting yourself and your soldiers out for mercenary work around the world.
This does not get into the many legal problems that could come up once this country exists. Soldiers that wear the uniform of a country and then go about doing military work in foreign countries are likely to stir up an international conflict. Doing mercenary work on this scale probably will draw the attention of the international community and an incident may occur. What kinds of laws exist in a country founded on the principals of soldiers that just fight for themselves? It doesn’t seem worth the effort to actually work toward this goal. The nation is too outside of the norm and would face too many attacks, both militarily and legally.
Following these simple steps and Big Boss’ dream could come to fruition. There shouldn’t be an evil A.I. system or an old acquaintance with a grudge to stand in most people’s way. That’s the stuff that drives video game plots. In real life the bad guy is mountains of paperwork and a lot of busywork.